r 


REESE  LIBRARY 

OF  THE 

UNIVERSITY  OF  CALIFORNIA. 

Deceived  ,  190     . 

Accession  Mo.  82986-   Class  No.' 


THE 

REFERENDUM  IN  AMERICA 

TOGETHER 

WITH    SOME   CHAPTERS   ON   THE    HISTORY   OF    THE 

INITIATIVE  AND   OTHER  PHASES  OF  POPULAR 

GOVERNMENT  IN  THE  UNITED  STATES 


BY 


ELLIS  PAXSON  OBERHOLTZER,  PH.  D.. 

SOMETIME  FELLOW  IN   POLITICAL  SCIENCE   IN  THE  UNIVERSITY  OF  PENNSYLVANIA. 

Author  of 

1  Law  Making  by  Popular  Vote"  "  The  Relations  Between  the  Government  and  the 
Newspaper  Press  in  the  German  Empire"  Etc. 


NEW  YORK 

CHARLES  SCRIBNER'S  SONS 
1900 


Copyright,  1900,  by 
ELLIS  PAXSON  OBERHOLTZER 


. 


PREFACE 

THE  names,  the  initiative  and  the  referendum,  have  been 
known,  of  course,  to  a  few  students  of  government  in  this 
country  and  England  for  many  years.  It  is,  however,  within 
only  a  very  short  time  that  these  terms  have  conveyed  a 
meaning  even  to  otherwise  intelligent  and  well  informed 
men.  The  governments  of  the  Swiss  cantons  were  little  un- 
derstood by  foreigners  and  it  was  not  until  the  system  of  re- 
ferring laws  to  popular  vote  was  introduced  into  the  practice 
of  the  Confederation  that  the  subject  began  to  claim  anything 
like  general  consideration  in  the  English  speaking  world. 
As  for  myself,  I  cannot  remember  that  very  much  that  was 
definite  was  known  of  this  interesting  democratic  institution 
prior  to  the  appearance  of  a  popularly  written  work  on  the 
Swiss  Confederation  in  1889  by  Sir  Francis  O.  Adams,  long 
the  British  Minister  at  Berne,  and  Mr.  C.  D.  Cunningham. 
This  book  stated  discussion  in  this  country,  and  it  soon  came 
to  be  recognized  that  law-making  by  the  people  was  also  no 
strange  thing  in  the  United -States.  Mr.  James  Bryce  re- 
ferred to  the  subject  in  a  chapter  in  "  The  American  Com- 
monwealth "  and  during  the  ten  years  past  this  feature  of  the 
Swiss  and  American  political  systems  has  become  familiar 
to  a  constantly  widening  circle  of  Americans. 

Our  own  experience  with  the  referendum  was  brought  to 
the  notice  of  readers  in  university  circles  by  the  publication 
in  1891  of  my  essay  on  "  Law  Making  by  Popular  Vote,"  by 
the  American  Academy  of  Political  and  Social  Science,  which 
was  followed  in  1893  by  a  somewhat  more  detailed  treatment 
of  the  subject  in  a  Monograph  on  the  Referendum,  included 
in  the  publications  of  the  University  of  Pennsylvania,  Poli- 
tical Economy  and  Public  Law  Series.  These  studies,  though 


82986 


vi  PREFACE 

appealing  necessarily  to  a  rather  narrow  interest  were  so 
kindly  received  by  students  of  political  institutions  in  this 
country,  England  and  France  that  it  has  encouraged  me  after 
these  seven  years  to  return  to  the  subject  in  the  present  work. 

Although  my  earlier  studies  regarding  the  referendum 
have  furnished  the  frame  for  some  of  the  chapters  of  the  pres- 
ent volume  every  sentence,  I  think,  is  new  and  many  of  the 
facts  are  from  sources  which  were  then  but  barely  tapped.  I 
cannot  flatter  myself  with  the  hope  that  such  a  recital  will 
be  interesting  reading  to  every  one,  but  I  have  made  an  effort 
to  keep  it  from  being  too  dry  and  insipid  to  the  general 
taste. 

In  seven  years  very  great  advances  have  been  made  in  the 
development  of  the  direct  principle  in  law-making  not  only 
in  this  but  also  in  other  lands.  Mr.  Bryce,  Mr.  W.  E.  H. 
Lecky,  Prof.  A.  V.  Dicey,  Mr.  A.  L.  Lowell,  Mr.  E.  L.  God- 
kin  and  many  other  writers  on  constitutional  subjects  have 
carefully  and  attentively  noted  these  manifestations  in  our 
political  life ;  and  indeed  in  all  countries  where  representative 
government  has  been  tested  and  its  weaknesses  have  been  re- 
vealed the  system  of  law-making  by  direct  popular  vote  has 
come  to  claim  a  large  share  of  public  interest. 

The  question  of  introducing  the  referendum  into  Belgium 
was  seriously  discussed  during  the  recent  constitutional  con- 
troversy which  preceded  and  accompanied  the  revision  of  the 
organic  law  of  that  kingdom.  More  recently  it  has  engrossed 
public  attention  in  Australia  in  connection  with  the  move- 
ment to  unite  and  federate  the  various  Australian  colonies. 

Coincidently  the  subject  has  rapidly  gained  a  place  for  it- 
self in  Socialist  and  Labor  party  platforms  in  Europe  and 
America.  In  the  United  States  the  demand  that  the  people 
should  have  a  larger  share  in  the  making  of  the  laws  has 
spread  over  a  great  area  and  through  many  strata  of  the 
population.  In  most  of  the  Western  States  the  referendum 
has  been  taken  up  with  zeal  by  the  advocates  of  radical 
social  reforms  in  the  belief  that  it  is  only  the  representative 
system  which  stands  between  them  and  the  realization  of 


PREFACE  vii 

their  ideals.  Seeing  the  light  first  in  the  political  program 
of  the  "  Farmers'  Alliance  "  the  referendum  made  its  way 
into  the  platforms  of  the  so-called  "  Peoples'  Party  ",  which 
polled  a  very  large  popular  vote  until  its  principles,  the 
referendum  with  the  rest,  were  transferred  almost  bodily  to 
the  platforms  of  the  Democratic  party.  Not  a  few  societies 
and  leagues  exist  for  the  purpose  of  advancing  this  reform, 
in  the  East  as  well  as  in  the  West,  and  there  are  not  many 
parts  of  the  country  where  the  referendum  is  now  a  strange 
name  even  to  the  common  man.  That  the  education  of  the 
people  respecting  such  a  subject  is,  in  a  way,  a  gain  in  a 
democracy  it  is  not  possible  to  doubt,  and  it  leads  one  to  hope 
that  a  question  so  vitally  affecting  our  constitutional  system 
may  be  still  more  deeply  examined  into  so  that  a  true  idea 
may  be  secured  as  to  the  worth  of  the  referendum  in  contrast 
with  the  older  representative  type  of  government  which  is 
the  heritage  of  the  Anglo-Saxon  race.  If,  in  this  work,  I  shall 
succeed  in  doing  ever  so  little  to  make  the  issue  clearer  in 
the  minds  of  those  to  whom  the  book  may  come,  I  shall  feel 
it  an  abundant  recompense  for  my  somewhat  tedious  labors 
among  the  law  books  of  the  American  States. 

It  should  be  explained  that  the  first  two  chapters  of  this 
work  are  the  result  of  a  study  undertaken  long  ago  in  an- 
other connection  when  I  had  hoped  that  the  engagements 
of  life  would  permit  me  to  complete  a  constitutional  history 
of  the  State  of  Pennsylvania,  in  the  preparation  of  which 
I  had  made  more  than  a  beginning.  I  think,  however,  that 
it  can  not  be  wholly  inappropriate  to  incorporate  these  chap- 
ters in  this  volume  since  they  illustrate  some  phases  of 
popular  government  in  America  of  which  we  all  have  need  of 
being  occasionally  reminded.  These  initial  chapters  will 
serve,  I  hope,  as  an  historical  background  for  those  which 
follow,  and  will  tend,  perhaps,  to  a  better  understanding  of 
some  developments  in  the  political  experience  of  the  United 
States  of  a  later  time.  Lest  in  these  chapters  I  should  be 
accused  of  partisanship  against  Dr.  Franklin  and  in  favor  of 
John  Adams,  which  is  a  fate  that  has  been  met  by  not  a  few 


viii  PREFACE 

writers  before  me,  I  wish  in  advance  to  disclaim  any  such 
intention  of  prejudice.  The  student  who  looks  for  his  sources 
in  regard  to  this  subject  will  find  many  of  the  most  valuable 
of  them  in  John  Adams'  "  Works  ",  and  Mr.  Adams'  theories 
have  found  their  justification  in  the  course  of  later  events 
while  Dr.  Franklin's  were  discredited  long  ago.  There  is 
no  desire  on  the  part  of  this  author  to  take  away  anything 
from  Franklin's  glory  in  any  direction  or  to  make  his  figure 
appear  in  any  other  than  an  historically  correct  light.  The 
historian  has  accorded  him  a  high  place  among  his  compeers 
and  my  only  aim  here  has  been  to  investigate  the  course  of  his 
life  as  it  bears  upon  political  science,  in  which  respect  he  was, 
I  think,  a  mistaken  adviser  of  his  fellow  men. 

I  wish  sincerely  to  thank  my  preceptors  and  friends  at  the 
University  of  Pennsylvania,  under  whose  inspiration  this 
work  was  begun,  while  I  was  still  a  student  in  that  institu- 
tion, for  their  interest  and  advice  during  the  progress  of 
these  studies.  I  desire  particularly  to  name  Prof.  Edmund 
J.  James,  the  President  of  the  American  Academy  of  Political 
and  Social  Science,  earlier  of  the  University  of  Pennsylvania, 
but  now  of  the  University  of  Chicago ;  Prof.  Simon  N.  Pat- 
ten, of  the  University  of  Pennsylvania,  and  Prof.  John  Bach 
McMaster,  of  the  University  of  Pennsylvania. 

I  wish,  too,  to  acknowledge  the  great  courtesy  of  the  of- 
ficers of  the  Pennsylvania  Historical  Society  and  of  the  Law 
Association  of  Philadelphia,  whose  valuable  collections  I 
have  constantly  referred  to  while  engaged  in  the  preparation 
of  these  chapters. 

ELLIS  P.  OBERHOLTZER. 

PHILADELPHIA,  August,  1900. 


CONTENTS 


CHAPTER  I 

PAGE 

The  Interplay  of  French  and  American  Thought  in  the  Eight- 
eenth Century I 

CHAPTER  II 
The  Downfall  of  Franklin's  Government  in  Pennsylvania 45 

CHAPTER  III 

The  Rise  of  the  Constitutional  Convention  and  the  Decline  of 
the  Legislature 69 

CHAPTER  IV 
The  Referendum  on  Entire  Constitutions 99 

CHAPTER  V 
The  Amendment  of  Constitutions  by  Conventions 128 

CHAPTER  VI 

The  Amendment  of  Constitutions  by  the  Legislative  Method....  142 

• 

CHAPTER  VII 

The  Referendum  on   Statutes  of  General   Operation  within  the  / 

State  when  the  Vote  of  the   People  is  Authorized  by  the 
State  Constitution 173 

CHAPTER  VIII 

The  Referendum  on  Statutes  of  General  Operation  within  the 

State  when  no  Authorization  for  the  Vote  is  Contained  in  the  V 

Constitution   200 

CHAPTER  IX 

The  Local  Referendum — Bills  Affecting  the  Scope  and  Form  of 

the   Local    Governments 218 

ix 


CONTENTS 
CHAPTER  X 

PAGE 

The  Local  Referendum — Loan  Bills  and  Financial  Proposals 241 

CHAPTER  XI 

The    Local    Referendum — Loan    Bills    and    Financial    Proposals 
(Continued) 279 

CHAPTER  XII 

The  Local  Referendum — Local  Option  Liquor  Laws  and  Vexed 

Questions       286      V 

CHAPTER  XIII 
The  Local  Referendum — Is  It  Constitutional? 311       J/ 

CHAPTER  XIV 
The  Referendum  on   City   Charters 335        ,, 

CHAPTER  XV 
le  Initiative  in  America 368     y 

CHAPTER  XVI 
The  Referendum  vs.  the  Representative  System 390     \f 


THE 
REFERENDUM    IN  AMERICA 


The  Referendum  in  America 


CHAPTER  I 

THE    INTERPLAY    OF    FRENCH    AND    AMERICAN    THOUGHT    IN 
THE  EIGHTEENTH   CENTURY 

THE  leaven  of  political  unrest  which  pervaded  the  popula- 
tions of  both  Europe  and  America  in  the  latter  half  of  the 
eighteenth  century,  was  responsible  for  a  number  of  peculiar 
results.  In  all  the  forms,  suggested  and  actual,  at  this  time, 
however,  popular  government  does  not  seem  to  have  passed 
through  the  phase  of  allowing  the  people  to  vote  directly  by 
yeas  and  nays  upon  their  laws,  or  even  upon  their  constitu- 
tions, though  we  find  evidences  of  this  in  respect  of  the  latter 
case,  in  two  of  the  New  England  States,  and  somewhat  later 
in  France  in  the  Revolutionary  Constitutions  1  of  that  fate- 
ful period  when  institutions  and  traditions  in  that  country 
were  being  swept  from  their  moorings  in  a  storm  of  revolt 
from  which  the  whole  of  Europe  barely  made  its  escape. 

The  influence  which  J.  J.  Rousseau  exerted  upon  the 
progress  of  political  events  in  America,  has  lately  been  made 
the  subject  of  an  interesting  examination  by  Prof.  Jellinek, 
of  Heidelberg,  and  the  results  arrived  at  have  the  effect  of 
reversing  some  pretty  well-grounded  opinions  on  this  point.2 

He  attempts  to  show  that  the  tendency,  at  this  time,  was 

1  Adoption  and  Amendment  of  Constitutions  in  Europe  and  America, 
by  Chas.  Borgeaud,  Hazen's  translation,  New  York,  1895,  pp.  199,  200; 
Lecky,  Democracy   and  Liberty,    1896,  Vol.   I,  p.  277. 

2  See  Jellinek,  Die  Erklarung  dcr  Menschen-und  Buergerrechte,  Leip- 
zig, 1895. 


2  THE  REFERENDUM  IN  AMERICA 

from  America  to  France,  rather  than  in  the  other  direction. 
In  so  far  as  the  Bills  of  Rights  in  the  various  State  Constitu- 
tions3 are  concerned,  beginning  with  Virginia's,  the  case  is 
probably  well  made  out,  and  it  would  appear,  quite  a  long 
time  ago.  There  is  not  a  particle  of  doubt  that  the  French 
Declaration  of  the  Rights  of  Man  was  helped  to  its  concrete 
form  by  the  American  Declarations  of  Rights,  but  it  would 
be  a  serious  mistake  were  we  altogether  to  disregard  Rous- 
seau's influence  in  this  connection.  Certainly  the  play  of 
ideas  of  one  country  upon  those  of  the  other  was  at  least 
mutual,  and  knowing  this,  as  we  do,  it  becomes  an  interesting 
field  of  historical  study.  It  is  a  period  of  the  highest  impor- 
tance in  the  constitutional  experience  of  America  and  France. 

In  the  Contrat  Social,  Rousseau  brought  to  expression  sen- 
timents that  millions  of  men  were  beginning  to  feel.  As  the 
philosopher  of  equality,  of  a  social  system  in  which  age,  sex, 
property,  knowledge,  were  of  little  weight  in  comparison  with 
the  demands  of  nature,  fantastically  worked  out  and  cata- 
logued in  an  a  priori  way,  he  was  the  spokesman  for  great 
numbers  of  people.  "  Taking  men  such  as  they  are,  and  laws 
such  as  they  may  be  made,"4  Rousseau  planned  his  scheme 
of  government,  and  yet  to  a  degree  beyond  any  other  writer 
of  his  time,  he  it  was,  perhaps,  who  took  men  not  as  they 
were,  but  as  they  were  not. 

In  the  state  in  which  the  system  of  the  Naturrecht  was  ex- 
emplified in  its  perfect  form,  the  people  were  to  assemble  and 
sanction  their  own  laws.  Jean  Jacques  gives  us  his  views  on 
this  point  in  terms  not  to  be  mistaken  :5  "  The  sovereign 
having  no  other  force  but  the  legislative  power,  acts  only  by 
the  laws;  and  the  laws  being  only  the  authentic  act  of  the 
general  will  (volonte  generate),  the  sovereign  can  never  att 
but  when  the  people  are  assembled.  Some  will  perhaps  think 
that  the  idea  of  the  people  assembling  is  a  mere  chimera,  but 
if  it  is  so  now,  it  was  not  so  two  thousand  years  ago ;  and  I 
should  be  glad  to  know  whether  men  have  changed  in  their 

3  Borgeaud,  op.  cit.,  pp.  15  et  seq.  5  Op.  cit.,  p.  156. 

*  Ocuvres,  Geneva,  1782,  Tome  II,  p.  3. 


FRENCH  AND  AMERICAN  THOUGHT  3 

nature."  He  tells  us  that  the  people  of  Rome  assembled  in 
the  Capitol,  and  here  exercised  their  sovereign  authority,  and 
that  at  remoter  times  the  Greeks,  the  Macedonians  and  the 
ancient  Franks  held  councils  of  the  people.  He  seems  not 
to  have  known  of  the  survival  of  the  folk-mote  in  some  of 
the  Swiss  cantons,  where  the  Lands gemeinde  was  still  a  pre- 
vailing institution,  as  it  is  to-day,  nor  of  the  town-meeting  in 
the  New  England  Colonies,  his  philosophy  needing  little  sup- 
port drawn  from  the  world  about  him. 

Representative  government  with  him  was  an  evil,  neces- 
sary sometimes  no  doubt,  but  only  to  be  tolerated, — never  to 
be  cordially  admired.  Legislatures  were  a  mark  of  political 
degeneracy.  They  resulted  from  a  declination  of  patriotism, 
in  this  sense — that  the  people  had  become  unwilling  or  indis- 
posed longer  to  attend  to  their  own  affairs.  There  was  bred 
an  activity  of  private  interest,  the  people  refusing  to  give  of 
their  time  to  society,  and  their  direct  participation  in  law 
making  was  made  difficult  also  by  the  immense  extent  of 
dominions,  a  tendency  to  be  deplored  since  the  government 
thus  became  undemocratic.  The  representative  system  was 
brought  on  by  the  abuse  of  government  generally;  it  was 
not  the  outgrowth  or  expression  of  the  natural  political  con- 
dition.6 Deputies  were  not  the  representatives  of  the  people. 
They  could  only  be  regarded  as  their  commissioners.  They 
were  not  qualified  to  conclude  upon  anything  definitively. 
"  No  act  of  theirs,"  said  Jean  Jacques,  "  can  be  a  law  unless 
it  has  been  ratified  by  the  people  in  person ;  and  without  that 
ratification  nothing  is  a  law."7 

One  cannot  conceive  of  Rousseau  being  other  than  a  rather 

«sionate  advocate  of  the  system  of  submitting  laws  to  pop- 
-  vote,  were  he  with  us  to-day,  though  without  a  ballot  sys- 
tem, which  has  been  a  development  of  more  recent  years,  the 
possibility  of  a  plebiscite  that  could  serve  as  a  substitute  for  a 
council  of  the  people  does  not  seem  to  have  suggested  itself 
to  the  French  philosopher.     He  did  not  hesitate  to  declare 
that  the  happiest  people  in  the  world,  in  his  own  view,  were 
6 Op.  tit.,  p.  165.  ''Ibid. 


4  THE  REFERENDUM  IN  AMERICA 

"  a  company  of  peasants  sitting  under  the  shade  of  an  oak  ", 
conducting  the  affairs  of  the  nation  "  with  a  degree  of  wis- 
dom and  equity  that  do  honor  to  human  nature  ".8  To  say 
that  a  writing  of  this  kind  passed  without  its  influence  in 
America  in  the  years  prior  to  and  during  the  Revolution,  is, 
it  would  appear,  a  grave  historical  error.  In  America  as 
well  as  in  Europe,  these  theories  (it  may  be  admitted  that 
they  were  not  Rousseau's  in  particular,  he  being  but  the 
wrriter  who  expressed  them  earliest  and  most  pleasingly)  soon 
struck  deep  root.  The  Contrat  Social  was  well  known  to 
the  Americans,  or  at  any  rate,  to  the  pamphleteers  and  news- 
paper writers  among  them,  who  were  busily  engaged  with  the 
subject  of  government,  arousing  a  popular  interest  in  this 
branch  of  knowledge,  which  would  do  great  credit  to  the 
American  democracy  in  this  later  time. 

Although  British  tendencies  in  respect  of  government  were 
strong  in  the  colonies,  there  was  a  conviction  among  the 
masses  everywhere  that  men  were  little  better  for  their 
wealth,  their  birth  or  even  for  their  training  and  education. 
These 'democratic  sentiments  were  held  more  obstinately  in 
the  frontier  districts  than  in  the  large  cities,  and  more 
strongly  too  in  parts  where  the  holdings  in  land  were  small, 
than  where  they  were  of  larger  size.  The  idea  was  spread 
far  afield,  and  the  belief  took  an  intenser  form  as  the  breach 
between  England  and  America  widened,  and  the  seeds  of  dis- 
cord were  sown,  men  aligning  themselves  in  increasing  num- 
bers in  favor  of  resistance,  independence  and  the  war.  If 
inequality  were  English,  then  it  was  the  more  unsuitable  for 
the  American  patriots.  It  must  be  discarded.  A  new  po- 
litical scheme  must  be  sought  out.  There  must  be  a  turni 
toward  France  where  was  held  a  more  liberal  philosop 
which  would  afford  the  people  sympathy  in  their  struggles 
accompanied  by  an  affiliation  in  sentiment,  which  was  the 
more  to  be  cultivated  a  little  later,  when  French  volunteers 
enlisted  in  the  Continental  army,  and  a  political  alliance  be- 
tween the  nations  was  definitively  established. 

8  Op.  cit.,  pp.   179-80. 


FRENCH  AND  AMERICAN  THOUGHT  5 

It  was  a  question  which  the  leaders  of  the  Revolution  in 
America  had  early  to  discuss,-^with  the  abolition  of  the  colo- 
nial governments  what  should  come  next  ?  What  should  fol- 
low the  old  political  order  ?  Should  independence  from  Eng- 
land, the  declared  equality  of  men  which  we  find  in  that  fa- 
mous writing  bearing  the  date  of  July  4,  1776,  and  in  the 
Bills  of  Rights  of  the  various  State  Constitutions,  be  followed 
by  government  most  like  or  most  divergent  from  that  to 
which  the  colonists  had  been  earlier  accustomed  ?  It  was  not 
unnatural  for  the  man  of  simplest  mind,  of  the  least  foresight, 
to  declare  that  what  would  be  in  the  highest  sense  satisfactory 
to  the  Americans  was  a  government  in  many  essential  points 
quite  different  from  that  which  they  had  had  hitherto. 

There  were  at  least  three  propositions  in  respect  of  the  new 
governments.  First,  the  very  conservative  view  which  made 
itself  felt  in  every  part  of  the  country,  but  which  was  most 
influential  in  the  South.9  This  faction  would  have  made  the 
States  monarchies  or  aristocracies,  with  magistrates  serving 
for  life.  Second,  the  moderate  republican  view  of  which  John 
Adams  was  the  ablest  and  most  distinguished  representative ; 
and  third,  the  ultra-democratic  view,  which  got  its  chief  sup- 
port from  France,  and  of  which  Benjamin  Franklin  was  a 
friend  and  defender. 

Dr.  Franklin,  who  had  been  in  London  in  the  interest  of 
the  colonies,  met  there  a  young  Englishman  named  Thomas 
Paine.  He  was  a  writer,  it  was  thought,  of  some  ability, 
and  although  not  professing  to  be  this  when  he  got  to  Amer- 
ica, but  instead,  one  who  had  just  found  a  voice,  as  if  in- 
spired, in  this  great  contest  against  British  power  and  ag- 
gression now  about  to  ensue,  he  did  not  disappoint  his  patron, 
Dr.  Franklin.  "In  the  course  of  this  winter"  (1775-76), 
John  Adams  writes  in  his  autobiography,10  "  appeared  a  phe- 
nomenon in  Philadelphia,  a  disastrous  meteor,  I  mean 
Thomas  Paine  ".  He  almost  immediately  published  a  pam- 
phlet which  he  called  Common  Sense,  and  he  continued  to 

8  Cf.  John  Adams'  Works,  Vol.  IV,  p.  201. 
10  Works,  Vol.  II,  p.  507. 


6  THE  REFERENDUM  IN  AMERICA 

write  under  this  name  throughout  the  war,  being  employed 
for  a  time  by  Congress,  winning  some  admirers,  but  not  a 
few  acquaintances,  who  regarded  him  with  no  more  respect 
than  did  Mr.  Adams.  He  afterwards  returned  to  Europe,  of- 
fered his  services  to  the  French  democrats,11  replied  to 
Burke's  aspersions  against  the  French  nation  in  respect  of 
the  Revolution  in  a  book  that  he  called  the  Rights  of  Man, 
was  elected  a  "  citoyen  de  France  ",  and  was  finally  chosen 
to  the  Convention  where  he  sat  among  the  members  who 
took  the  nickname  of  "  the  Mountain  ",12  He  was  an  interna- 
tional firebrand  in  very  truth,  a  kind  of  American  Mirabeau 
without  the  power  of  declamation,  who,  however,  wrote  Eng- 
lish savagely  and  unscrupulously,  and  somehow  met  with 
many  attentive  readers.  His  Common  Sense  passed  through 
several  editions,  and  appearing  as  it  did  when  the  people 
were  undecided  whether  or  not  to  sever  their  relations  with 
England,  not  knowing,  if  they  should  do  so,  what  would 
follow,  his  pamphlet  won  a  degree  of  popularity  beyond  any 
intrinsic  worth,  so  far  as  we  are  able  to  perceive  upon  a  peru- 
sal of  it  at  the  present  day. 

This  pamphlet  was  an  appeal  "  addressed  to  the  inhabitants 
of  America  ".  The  author  revealed  himself  a  revolutionist 
in  every  part  and  member.  "  We  have  it  in  our  power  ",  he 
said,  "  to  begin  the  world  over  again.  A  situation  similar  to 
the  present  hath  not  happened  since  the  days  of  Noah  until 
now."  13  He  traced  the  origins  of  government  in  a  manner 
clearly  pointing  to  his  familiarity  with  the  Contrat  Social, 
since  Rousseau!s  happy  peasants  under  the  oak  were  not  dif- 

11  Cf.  Letter  to  the  authors  of  the  Republican  which  was  published  by 
Condorcet,  in  Political  Writings  of  Thomas  Paine,  Albany,   1794. 

12  Cf.  Borgeaud,  op.  cit.,  p.  206. 

18  Political  Writings — Common  Sense,  p.  58  ;  cf.  Burke's  words  ad- 
dressed to  the  revolutionists  in  France :  "  You  chose  to  act  as  if  you 
had  never  been  moulded  into  civil  society,  and  had  everything  to  begin 
anew.  You  began  ill  because  you  began  by  despising  everything  that 
belonged  to  you.  You  set  up  your  trade  without  a  capital.  If  the  last 
generations  of  your  country  appeared  without  much  lustre  in  your  eyes, 
you  might  have  passed  them  by,  and  derived  your  claim  from  a  more 
early  race  of  ancestors.  Under  a  pious  predilection  for  those  ancestors, 


FRENCH  AND  AMERICAN  THOUGHT  7 

ferent  from  those  Paine  called  to  mind,  when  he  wrote14  that 
when  the  people  of  a  community  were  ready  for  government 
"  some  convenient  tree  will  afford  them  a  state  house  under 
the  branches  of  which  the  whole  colony  may  assemble  to  de- 
liberate on  public  matters  ".  And  he  continued :  "  In  this 
first  parliament  every  man  by  natural  right  will  have  a  seat." 
As  the  colony  increased  in  size,  it  would  be  necessary  for 
them  to  agree  together  "  to  leave  the  legislative  part  to  be 
managed  by  a  select  number  chosen  from  the  whole  body, 
who  are  supposed  to  have  the  same  concerns  at  stake,  which 
those  have  who  appointed  them,  and  who  will  act  in  the  same 
manner  as  the  whole  body  would  act  were  they  present  ",15 
He  indicated  that  frequent  elections  would  be  necessary,  and 
that  the  system  of  government  should  be  "  simple  ".  By  this 
he  meant  that  he  should  favor  an  assembly  of  a  single 
chamber,  which  he,  with  his  friend  Franklin,  and  the  other 
leaders  of  the  Franco-Pennsylvanian  Democracy  would  soon 
introduce  into  the  fundamental  law  of  the  State  of  Pennsyl- 
vania. He  found  the  weakness  of  the  English  Constitution 
to  be  its  complexity,  while  Montesquieu  and  John  Adams  re- 
garded this  thing  as  the  chief  source  of  its  strength.  The 
three  branches  of  government,  the  executive,  legislative  and 
judicial,  checking  each  other,  in  their  result  he  declared  to  be 
contradictions,  and  the  whole  system  of  balances  considered 
in  the  light  of  his  philosophy,  was  reduced  to  "  a  mere  ab- 
surdity ".  It  is  true  that  Adams  himself  expresses  the  opin- 
ion that  the  influence  of  Paine's  pamphlet  was  not  so  great 
as  many  had  considered  it;16  but  it  was  doubtless  difficult 

your  imagination  would  have  realized  in  them  a  standard  of  virtue  and 
wisdom  beyond  the  vulgar  practice  of  the  hour's,  and  you  would  have 
risen  with  the  example  to  whose  imitation  you  aspired.  Respecting  your 
forefathers,  you  would  have  been  taught  to  respect  yourselves.  You 
would  not  have  chosen  to  consider  the  French  as  a  people  of  yesterday, 
as  a  nation  of  low-born  servile  wretches,  until  the  emancipating  year 
of  1789". — Works,  London,  1815,  Vol.  V,  pp.  82-83. 

14  Common  Sense,  p.  7  ;  cf.  Plain  Truth,  the  pamphlet  written  in  reply 
to  Common  Sense,  in  defence  of  the  English  Constitution  with  its  sys- 
tems of  checks  and  balances,  as  expounded  by   Montesquieu. 

15  Common  Sense,  p.  7.  18  Adams'  Works,  Yol.  II,  p.  509. 


8  THE  REFERENDUM  IN  AMERICA 

then,  as  it  would  be  to-day,  to  determine  how  great  or  little 
may  be  the  effect  of  such  a  publication  at  an  opportune  mo- 
ment. Its  publication  at  any  rate,  alarmed  the  Massachusetts 
leader,  as  he  is  free  to  admit  in  his  review  of  this  period  of 
his  life.17  He  took  immediate  steps  to  counteract  the  hurt- 
ful tendency,  as  he  thought  it  to  be,  and  we  shall  now  see 
with  what  success,  and  as  a  result  of  how  much  pains  and 
effort. 

John  Adams  while  attending  the  sessions  of  the  Conti- 
nental Congress,  conferred  with  the  members  from  the  other 
colonies  whom  he  met  there  regarding  the  various  problems 
of  government  which  would  arise  in  case  of  a  severance  of 
relations  with  Great  Britain,  and  he  soon  came  to  be  regarded 
as  a  leader  in  American  constitutional  discussion.  Richard 
Henry  Lee,  a  delegate  from  Virginia,  upon  whose  support 
in  Congress  Mr.  Adams,  as  a  rule,  could  certainly  rely,  was 
so  much  impressed  by  the  views  of  his  Massachusetts  col- 
league, that  he  asked  the  latter  to  reduce  his  plan  to  writing, 
which  he  did  in  the  form  of  a  letter  addressed  to  Mr.  Lee 
from  Philadelphia,  under  date  of  November  15,  I775.18 
"  Taking  nature  and  experience  for  my  guide  ",19  he  said,  "  I 
have  made  the  following  sketch  " ;  whereupon  he  proceeded 
to  state  with  great  lucidity  that  "  a  legislative,  an  executive 
and  a  judicial  power  comprehend  the  whole  of  what  is  meant 
and  understood  by  government  ".  "  It  is  balancing  each  of 
these  three  powers  against  the  other  two,"  he  added,  "  that 
the  efforts  in  human  nature  towards  tyranny  can  alone  be 

17  Mr.  Adams  says  that  he  considered  Paine's  plan  for  an  assembly 
of  one  chamber,  "  as  flowing  from  simple  ignorance  and  a  mere  desire 
to   please   the   Democratic  party   in   Philadelphia,   at  whose   head  were 
Mr.  Matlack,  Mr.  Cannon  and  Dr.  Young.    I  regretted,  however,  to  see 
so  foolish  a  plan  recommended  to  the  people  of  the  United  States,  who 
were  waiting  only   for  the  countenance  of   Congress  to   institute  their 
State  governments.     I  dreaded  the  effect  so  popular  a  pamphlet  might 
have    among   the   people,    and    determined   to    do    all    in    my   power   to 
counteract  the  effect  of  it  ". — Works,  Vol.  II,  pp.  507-8. 

18  Works,  Vol.  IV,  pp.   185-187. 

19  Cf.  Rousseau's  introduction  to  his  Contrat  Social  alluded  to  in  this 
chapter,  ante,  p.  2. 


FRENCH  AND  AMERICAN  THOUGHT  9 

checked  and  restrained,  and  any  degree  of  freedom  preserved 
in  the  constitution." 

The  legislature,  he  said,  should  consist  of  a  "  house  of 
commons  ",  which  would  represent  the  people,  and  a  "  coun- 
cil "  elected  by  the  house,  either  from  its  own  members  or  the 
citizens  at  large,  to  consist  of  twelve,  sixteen,  twenty-four  or 
twenty-eight  persons.  Each  chamber  should  have  a  negative 
on  the  bills  passed  by  the  other.  The  executive  power  should 
be  exercised  by  a  governor  chosen  annually,  triennially  or 
septennially,  as  might  be  preferred,  by  joint  ballot  of  the 
house  of  commons  and  the  council.  The  governor  should 
possess  the  power  of  vetoing  bills  which  the  legislature  had 
passed.  He  should  appoint  civil  and  military  officers,  with 
the  advice  and  consent  of  the  council,  and  have  command  of 
the  army.  The  judicial  power  was  to  be  exercised  by  judges 
appointed  by  the  governor,  not  elected  by  the  people. 

Mr.  Adams'  plan  in  the  main,  was  for  a  government  such 
as  has  to-day,  with  slight  modification,  everywhere  come  to 
be  the  prevailing  form  in  this  country.  Virginia  at  that  time 
was  perhaps  the  most  important  colony  among  the  thirteen, 
and  naturally  much  concern  was  felt  as  to  the  result  of  the 
convention  which  was  soon  to  meet  there  to  arrange  for  a 
transition  from  a  royal,  that  is  the  colonial,  to  an  independent 
republican  government.  Adams,  in  response  to  a  request  for 
a  fuller  statement  of  his  views  on  this  subject,  wrote  his 
11  Thoughts  on  Government ",  also  in  the  form  of  a  letter  to 
a  Virginian,  which  was  published  early  in  I776,20  and  was 
widely  circulated  in  Virginia,  exerting  a  very  considerable 
influence  upon  the  members  of  the  convention.21  There 
was  in  Virginia  among  most  of  the  "  opulent  families  "  of  the 

20  Works,  Vol.  IV,  pp.   193  et  seq. 

21  Works,  Vol.  I,  p.  208.     See  also  Letter  of  Patrick  Henry  to  John 
Adams,  May  20,  1776,  Works,  Vol.  IV,  p.  201.     Adams'  pamphlet  led  to 
the  publication  of  another  by  an  unknown  author,  which  was  entitled 
"  An  address  to  the  convention  of  the  colony  and  ancient  Dominion  of 
Virginia  on  the   subject  of  government  in  general,   and  recommending 
a  particular  form  to   their  consideration  by  a    native   of  the   colony ". 
This    was    designed    to    counteract    the    popular    influence    of    Adams' 


io  THE  REFERENDUM  IN  AMERICA 

State,  "  a  strong  bias  to  aristocracy  ",22  Adams,  in  the 
"  Thoughts  on  Government  ",  which  he  offered  to  the  Vir- 
ginians, advanced  his  opinion,  against  that  of  the  "  meteor  " 
Paine,  that  "  the  happiness  of  society  is  the  end  of  govern- 
ment ".  Paine,  following  Rousseau,  had  said  that  "  govern- 
ment even  in  its  best  state  is  a  necessary  evil  ",23  '  There  is 
no  good  government ",  Mr.  Adams  continued,  "  but  what  is 
republican  ",  and  he  pointed  to  the  writings  of  Sidney,  Har- 
rington, Locke,  Nedham,  Neville,  Burnet  and  Hoadly,  thus 
indicating  the  breadth  of  his  reading  upon  political  subjects. 
The  "  only  valuable  part  of  the  British  Constitution  "  at  the 
time  he  wrote  was,  he  declared,  republican.  "  In  a  large  so- 
ciety inhabiting  an  extensive  country,  it  is  impossible  that  the 
whole  should  assemble  to  make  laws.  The  first  necessary 
step  then,  is  to  depute  power  from  the  many  to  a  few  of  the 
most  wise  and  good  ",  and  here  we  have  a  well-summarized 
statement  of  the  representative  principle,  which  he  desired 
should  not  be  departed  from. 

He  continued  his  inquiry  regarding  the  proper  means  of 
choosing  these  representatives,  declaring  himself  specifically 
opposed  to  Paine's  legislative  assembly  of  a  single  chamber24 
to  which  he  stated  his  objections  under  six  heads,  among 
these  being  the  following, — that  such  a  body  was  liable  to  all 
the  "vices,  follies  and  frailties  of  an  individual",  being  hasty, 
passionate,  enthusiastic,  prejudiced  as  the  whim  might  seize 
it ;  that  it  was  apt  to  be  avaricious,  exempting  itself  from  bur- 
dens, and  putting  them  on  others ;  and  that  it  was  ambitious, 
and  would  vote  to  make  itself  perpetual.  He  again  aimed  to 
impress  it  upon  his  readers,  how  essential  it  was  to  keep  the 

writing.  For  this  document  see  Force's  Archives,  Fourth  Series,  Vol. 
VI,  cc.  748-754. 

"Patrick    Henry's   letter   to   John   Adams,    Adams'    Works,    Vol.    IV, 

P.    201. 

28  Polit.  Writings  of  T.  Paine,  in  pamphlet  Common  Sense,  p.   i. 

24  Works,  Vol.  Ill,  p.  22.  Adams  writes  in  his  Autobiography  about 
this  time  :  "  I  knew  that  every  one  of  my  friends  and  all  those  who  were 
most  zealous  for  assuming  governments,  had,  at  that  time,  no  idea  of 
any  other  government  but  a  contemptible  legislature  in  one  assembly, 
with  committees  for  executive,  magistrates  and  judges." 


FRENCH  AND  AMERICAN  THOUGHT  ii 

legislative,  executive  and  judicial  departments  of  the  govern- 
ment properly  separated,  and  repeated  his  suggestions  re- 
specting the  constitution  of  these  various  departments,  con- 
tained in  his  letter  of  a  few  months  before  to  Mr.  Lee.  He 
expressed  his  dissent,  too,  from  the  proposition  for  a  frequent 
rotation  of  officers  which  is  an  error  that  was  soon  committed 
by  the  Philadelphia  democrats  in  the  framing  of  the  first  Con- 
stitution of  Pennsylvania  and  which  later  became  one  of  the 
subjects  of  strife  in  the  bitter  contest  that  ensued  between  the 
Constitutionalists  and  Anti-Constitutionalists  in  that  State. 

But  Adams,  too,  was  quite  as  alert  to  check  the  royalists 
and  aristocrats,  as  the  single-chamber  democrats.  On  March 
23,  1776,  he  wrote  a  letter  to  General  Gates25  in  which  he  al- 
luded to  the  problem  confronting  the  Americans  in  a  more 
general  way.  "  The  difficulty  ",  he  says  in  this  communica- 
tion, "  lies  in  forming  particular  constitutions  for  particular 
colonies,  and  a  continental  constitution  for  the  whole.  Each 
colony  should  establish  its  own  government,  and  then  a 
league  should  be  formed  between  them  all.28  This  can  be 
done  only  on  popular  principles  and  axioms,  which  are  so 
abhorrent  to  the  inclinations  of  the  barons  of  the  South,  and 
the  proprietary  interests  in  the  Middle  States,  as  well  as  to 
that  avarice  of  land,  which  has  made  on  this  continent  so 
many  votaries  to  Mammon,  that  I  sometimes  dread  the  con- 
sequences." The  influence  of  Adams  and  his  friends  against 
the  "  barons  of  the  South  "  in  so  far  as  Virginia,  the  largest 
of  the  southern  colonies,  was  concerned,  was  effectively  im- 
pressed upon  the  convention  which  framed  the  first  Constitu- 
tion of  that  State,  and  in  Pennsylvania,  a  "  Middle  State  "  in 
which  the  proprietary  interests  were  so  strong,  they  were  not 
these  interests  which  Adams  was  to  combat  in  the  constitu- 
tional discussions  of  the  next  few  years.  He  was  to  be  con- 

25  Works,  Vol.  I,  pp.  207-8. 

28  This  was  done,  the  league  being  organized  under  the  Articles  of 
Confederation,  of  1777,  and  although  this  was  in  accordance  with 
Adams'  advice  at  this  time,  he  later  was  among  the  first  to  perceive  the 
need  of  a  stronger  central  government ;  cf.  Thoughts  on  Govt.,  Vol.  IV, 
p.  200. 


12  THE  REFERENDUM  IN  AMERICA 

fronted  by  the  party  which  was  too  democratic,  rather  than 
too  aristocratic.  The  way  was  being  prepared  at  Philadel- 
phia for  a  constitution,  which  was  the  most  extraordinary 
ever  adopted  in  America,  and  one  of  the  most  impractical 
which  men  have  ever  been  invited  to  live  under  in  any  part 
of  the  world. 

A  little  later,  Mr.  Adams  embodied  his  views  in  respect  of 
a  suitable  government  for  the  Americans,  in  a  letter  to  John 
Penn,  with  the  hope, — and  it  was  not  a  vain  one, — of  exert- 
ing an  influence  in  favor  of  the  English  form  of  government 
in  North  Carolina,  where,  as  in  Virginia,  a  convention  was 
about  to  meet  for  the  purpose  of  adopting  a  State  Constitu- 
tion.27 His  efforts  in  the  same  direction  were  also  extended 
into  other  colonies,  with  no  doubtful  result.28 

Concerning  Mr.  Adams'  system  of  government  for  the  new 
American  States,  his  grandson,  Charles  Francis  Adams,  pays 
a  just  tribute  to  the  man,  when  he  writes :  "  It  is  very  true 
that  the  outline  of  the  system  thus  recommended  contains 
the  same  features  in  the  main,  which  are  found  in  the  colonial 
charters  of  New  England,  and  are  in  them,  taken  from  the 
constitutional  forms  of  the  mother  country.  Mr.  Adams  had 
made  them  the  study  of  his  life,  and  fully  believed  that  they 
rested  upon  general  principles  of  the  highest  possible  value. 
He  had  little  of  the  purely  scheming  temper  that  has  led  some 
of  the  noblest  minds  of  the  world  to  devise  systems  of  their 
own,  ingenious,  and  sometimes  imposing,  but  utterly  want- 
ing in  practical  adaptation  to  the  feelings  and  habits  of  those 
for  whose  use  they  were  intended.  He  had  studied  Plato, 
and  Montesquieu,  Milton,  Locke  and  Harrington  quite  as 

27  Works,  Vol.  IV,  p.  203. 

28  Works,  Vol.  I,  p.  209.     Chas.  Francis  Adams,  in  his  "  Life  of  John 
Adams  ",   says :    "  His   sentiments  were   so   extensively   diffused   as   ma- 
terially to  guide  the  public  mind   in  the  construction   of  many   of  the 
State    Constitutions.      The    immediate    effect    was    particularly    visible 
in  those  adopted  by  New  York  and  North  Carolina,  the  last  of  which 
remained  unchanged  for  sixty  years,  and  at  the  time  of  its  amendment, 
in  1836,  was  the  only  one  left  of  the  Constitutions  adopted  at  the  Revo- 
lution." 


FRENCH  AND  AMERICAN  THOUGHT  13 

profitably  to  avoid  their  errors  as  to  heed  their  counsels. 
*  *  *  The  people  though  attached  by  habit  to  the  old 
forms  were  very  open  to  receive  new  impressions.  Their 
ideas  upon  government  in  general  were  not  a  little  crude. 
Mr.  Adams  did  not  permit  himself  to  be  led  astray  by  any 
of  these  temptations.  Conservative  by  temperament  and 
education,  he  applied  his  mind  to  the  task  of  saving  whatever 
experience  had  proved  to  be  valuable  in  the  British  constitu- 
tional forms.  *  *  *  The  skill  with  which  this  was  done 
may  be  best  understood  from  the  result,  for  it  is  undeniable 
that  the  success  of  the  constitutions  adopted  in  the  respective 
States  has  proved  proportionate  to  the  degree  of  their  ap- 
proximation to  the  general  features  of  his  plan."  29 

In  the  meantime,  Paine  and  those  who  entertained  his  opin- 
ion that  British  models  should  be  wholly  departed  from,  who 
were  ready  "  to  begin  the  world  over  again,"  and  to  build  it 
anew  on  other  foundations,  were  actively  making  their  propa- 
ganda against  Mr.  Adams,  and  were  achieving  a  degree  of 
success  quite  out  of  proportion  to  their  due.  This  was  par- 
ticularly true  in  Pennsylvania,  which  from  now  on,  through- 
out the  Revolution,  and  until  the  State  constitutional  conven- 
tion met  in  1790  and  definitely  made  an  end  to  all  these  singu- 
lar notions,  was  the  stronghold  of  the  French  party  on  this 
continent. 

Upon  the  loth  day  of  May,  1776,  a  resolution  was  passed 
by  the  Congress,  authorizing  the  various  colonies  to  insti- 
tute at  their  option,  new  governments.  The  resolution,  to 
which  Mr.  Adams,  by  appointment  of  the  Congress,  drafted 
a  fitting  preamble,  was  as  follows :  "  That  it  be  recom- 
mended to  the  respective  assemblies  and  conventions  of  the 
United  Colonies,  where  no  government  sufficient  to  the  ex- 
igencies of  their  affairs  has  been  hitherto  established,  to 
adopt  such  government  as  shall,  in  the  opinion  of  the  people, 
best  conduce  to  the  happiness  and  safety  of  their  constitu- 
ents in  particular,  and  America  in  general." 

Already  the  Virginia  Convention  had  met  at  Williams- 

29  Works,  Vol.  I,  p.  209. 


14  THE  REFERENDUM  IN  AMERICA 

burgh,  and  in  Pennsylvania  where  the  differences  between 
the  proprietary  interests  and  the  more  popular  interests  had 
been  prolonged,  and  where  the  dissatisfaction  of  large  sec- 
tions of  the  people  was  so  great,  and  the  distrust  for  the  aris- 
tocratic colonial  assembly  so  deeply  rooted,  steps  were  imme- 
diately taken  to  establish  a  new  government,  as  the  Congress 
had  advised.  There  were  at  this  time  in  the  colony,  two 
bodies  almost  parallel  in  authority; — the  Assembly  and  the 
"  County  Committees  ",  organized  by  the  citizens  in  1774,  to 
arrange  for  appointing  delegates  to  Congress,  and  to  con- 
fer with  the  Assembly  rather  gratuitously  in  respect  of 
questions  of  common  gravity,  so  many  of  which  were  arising 
constantly,  by  reason  of  England's  attempts  to  coerce  the 
Americans.  These  committees,  called  at  first  "  Committees 
of  Correspondence",  came  later  to  be  known  as  "Committees 
of  Inspection  and  Observation  ".  a  name  more  narrowly  de- 
scriptive of  their  specific  duties  and  functions.  The  members 
were  elected  by  the  people  as  were  the  members  of  the  As- 
sembly, though  the  bodies  were  extra-constitutional  in  every 
sense,  and  without  authority  except  in  so  far  as  this  was  de- 
rived from  legislation  of  the  Continental  Congress. 

There  was  in  the  colony,  so  soon  as  the  resolution  of  May 
15,  1776  had  been  passed,  a  dread  lest  the  Assembly  should 
undertake  to  institute  a  government  on  its  own  account,  al- 
though the  members  of  the  proprietary  party  declared  that 
the  present  government  was  itself  "  sufficient  to  the  exigen- 
cies of  their  affairs  "  and  that  any  new  government,  there- 
fore, would  be  superfluous.  To  avert  such  a  coup,  the  Phila- 
delphia City  Committee  issued  a  call  for  a  public  meeting,  to 
be  held  in  the  "  State  House  Yard",  on  May  20,  1776,  which, 
according  to  the  newspapers  of  the  time,  was  attended  by  sev- 
eral thousand  persons.  It  was  agreed  on  this  occasion  that. 
the  Assembly  being  incompetent  for  the  task  of  instituting  a 
new  government,  a  "  provincial  Convention "  should  be 
chosen  by  the  people.  In  order  to  determine  upon  the  meth- 
ods to  be  adopted  in  selecting  the  members  of  this  Conven- 
tion, a  general  conference  was  called  to  meet  in  Philadelphia 


FRENCH  AND  AMERICAN  THOUGHT  *5 

on  June  18.  The  Philadelphia  City  Committee,  taking  the  in- 
itiative in  this  matter,  at  once  sent  out  letters  which  were  de- 
livered in  many  cases  by  its  own  members,  or  other  deputed 
representatives  to  the  Committees  in  the  various  counties. 
At  this  conference  there  were  108  duly  accredited  deputies 
from  the  different  Committees.  The  body  proceeded  at  once 
to  perfect  the  arrangements  for  the  provincial  Convention, 
which  was  to  meet  "  for  the  express  purpose  of  forming  a 
new  government  *  *  *  on  the  authority  of  the  people 
only  ". 

The  "  associators  ",  or  the  militiamen,  who,  in  many  cases, 
had  been  denied  the  suffrage  heretofore,  greatly  to  their  dis- 
satisfaction, were  now  all  enfranchised  ipso  facto  by  reason 
of  their  connection  with  the  army,  and  all  other  persons  who 
should  present  their  votes  for  members  of  the  Convention, 
were  required  to  take  an  oath  of  fealty  to  America,  as  against 
Great  Britain.  The  number  of  members  of  the  Convention 
was  fixed  at  ninety-six,  or  eight  for  the  city  and  each  county, 
irrespective  of  differences  in  population  or  wealth.  The  elec- 
tions were  appointed  for  July  8,  the  entire  movement  being 
hurried  forward  so  precipitately  as  to  prevent  adequate  dis- 
cussion of  the  project,  and  the  people  at  a  distance  from  the 
city  were  not  even  allowed  an  opportunity  to  express  their 
opinions  in  numbers  at  the  polls.  One  week  after  the  elec- 
tions or  on  July  15,  the  Convention  met  at  the  State  House 
in  Philadelphia,  continuing  in  session  by  adjournments,  till 
the  28th  day  of  the  ensuing  September.  The  personnel  of 
this  body  is  a  matter  of  some  interest,  in  view,  of  what  it  pro- 
ceeded to  do  so  soon  as  it  had  met.  It  was  composed,  of 
course,  of  the  committeemen  or  those  in  whom  the  latter  had 
full  confidence,  being  an  assembly,  radical,  perhaps,  beyond 
any  which  had  gathered  together  before  in  the  colonies.  The 
elections  had  been  completely  in  the  hands  of  the  county 
committees,  and  they  had  passed  off  without  much  excite- 
ment or  contest.  The  main  test  in  the  case  of  candidates  at 
this  time  was  their  loyalty  to  the  cause  of  independence.  Of 
the  ninety-six  delegates,  thirty-one  had  been  members 


1 6  THE  REFERENDUM  IN  AMERICA 

of  the  conference,  which  had  met  on  June  18.  Ten 
had  been  members  of  the  Convention  of  January,  1775, 
and  eight  had  sat  in  the  Convention  of  July  15,  1774. 
There  were  few  who  had  been  members  of  the  old  proprietary 
Assembly.30  Nearly  all  were  frontiersmen,  since  the  West- 
ern counties  which  were  being  rapidly  populated,  each  had 
a  representation  in  the  Convention  equal  to  Philadelphia  city. 
These  delegates  were  for  the  most  part  farmers ;  some  of 
them  millers,  that  is,  proprietors  of  small  grist  mills,  which 
crushed  and  ground  grain  by  water-power.  The  pioneer 
farming  class,  imbued  with  ideas  of  a  singularly  democratic 
kind,  predominated  in  the  councils  of  the  Convention.  Phil- 
adelphia was  naturally  the  center  for  such  scholarship  as  ex- 
isted at  that  day  in  the  colony,  and  it  was  then  the  leading 
American  city,  being  the  assembling  place  of  the  delegates 
from  the  different  colonies,  which  soon  came  to  be  States,  the 
first  capital  of  the  Republic.  The  city's  advantage  in  this 
respect  was  evidenced  by  the  presence  in  the  Convention,  in 
the  Philadelphia  delegation,  of  Benjamin  Franklin,  who  was 
at  once  chosen  to  be  the  President  of  the  Convention ;  David 
Rittenhouse,  James  Cannon,  a  graduate  of  the  University 
of  Edinburgh,  and  a  tutor  in  the  Academy  of  Philadelphia ; 
Owen  Biddle,  a  member  of  the  Philosophical  Society  and  an 
astronomer,  and  George  Clymer. 

If  our  records  are  trustworthy,  there  were  only  four  law- 
yers in  the  Convention, — George  Ross,  of  Lancaster,  who  was 
elected  Vice-President  of  the  Convention,  and  occupied  the 

10  These  facts  regarding  the  membership  of  the  convention  are 
gleaned  from  Dr.  W.  H.  Egle's  Biographical  Sketches  in  Pennsylvania 
Magazine,  Vol.  Ill,  pp.  46  el  seq.  John  Jacobs  of  Chester  County  had 
sat  in  the  Assembly  continuously  since  1762,  and  Benjamin  Franklin 
had  of  course  been  a  burgess  from  the  city  for  many  years.  Benjamin 
Bartholomew  had  represented  Chester  County  in  the  Assembly  since 
1772.  George  Ross  had  held  a  seat  from  Lancaster  County  since  1768. 
John  Wilkinson,  of  Bucks  County,  had  been  in  the  Assembly  but  only 
for  one  year,  in  1762-3.  David  Rittenhouse  had  been  elected  in  1776. 
George  Clymer  and  eight  others  who  were  members  of  the  Convention, 
had  been  elected  to  the  Assembly  just  a  few  weeks  before,  when  the 
functions  of  that  body  were  about  to  terminate. 


FRENCH  AND  AMERICAN  THOUGHT  17 

chair  in  Franklin's  absence,  being  the  most  eminent  in  the 
little  group.  There  was  scarcely  any  one  who  could  be 
looked  to  to  lead  the  deputies  aright,  and  to  act  as  a  balance 
against  the  rash,  the  enthusiastic  and  the  ignorant  among 
the  members,  for  most  of  those  who  had  knowledge  of  con- 
stitutional questions  and  of  statecraft  had  been  left  at  home, 
as  suspected  Tories,  or  for  other  reasons  were  not,  unfortu- 
nately for  the  early  history  of  the  State,  called  to  the  task  of 
preparing  for  it  a  frame  of  government. 

This  Convention,  gathered  together  in  haste  and  panic, 
only  a  fortnight  after  it  had  met,  on  August  2,31  determined 
by  vote  in  committee  of  the  whole,  that  the  new  government 
should  be  centered  in  a  legislature  of  but  a  single  chamber.32 
The  warnings  which  John  Adams  had  uttered  with  so  much 
courage  and  earnest  conviction,  and  which  had  had  their 
effect  in  Virginia,  and  were  being  heeded  in  other  of  the  new 
commonwealths,  fell  upon  deaf  ears  in  the  capital  city  of  the 
United  Colonies,  the  city  of  Franklin,  and  of  Thomas  Paine. 
The  debates  upon  the  "  Frame,"  or  that  part  of  the  Consti- 
tution following  the  Bill  of  Rights  which  was  adopted  on 
August  1 6,  began  on  August  21,  and  continued  until  Septem- 
ber 5.  The  "  Frame  "  was  published  in  pamphlet  form  on 
September  10,  though  it  was  not  printed  in  the  newspapers 
until  a  few  days  later.  It  was  desired  that  it  should  be  cir- 
culated among  the  people  for  their  consideration,  it  was  said, 
and  yet  on  September  16,  the  Convention  resumed  its  ses- 
sions and  hastened  to  adopt  the  draft,  which  it  did  on  Septem- 
ber 28,  promulgating  it  at  once  as  the  Constitution  of  the 
State.  It  was  said  with  great  truth  afterward,  when  it  was 
alleged  that  the  people  had  not  had  a  hand  in  determining 
whether  they  desired  to  live  under  such  a  form  of  govern- 
ment, that  the  pamphlets  had  scarcely  got  outside  the  city 

81  Minutes  of  the  Convention,   Philadelphia,   1776,  p.   18. 

32  It  is  noteworthy  that  in  the  national  government,  in  so  far  as  there 
was  yet  one  at  hand,  no  division  of  powers  existed.  "  All  the  powers 
of  government, — legislative,  executive  and  judiciary, — were  at  that  time 
(1776)  collected  in  one  centre,  and  that  centre  was  Congress."  Adams' 
Autobiography,  Works,  Vol.  Ill,  p.  87. 


1 8  THE  REFERENDUM  IN  AMERICA 

before  the  Convention  met  again,  and  proceeded  to  ratify  its 
earlier  work.33  This  was  not  a  consultation  with  the  people, 
a  reference  to  them  of  the  important  question  of  whether  or 
not  they  should  have  one  constitution  or  another — a  question 
which,  in  Massachusetts  and  New  Hampshire,  and  elsewhere 
in  America,  was  coming  now  to  be  regarded  as  one  that  the 
electors  should  determine  in  their  town  meetings,  and  at  the 
local  polling  places. 

Very  few  changes  were  made  in  the  original  frame  in  those 
days  from  September  16,  when  the  Convention  resumed 
its  debates,  to  September  28,  when  Benjamin  Franklin  and 
the  other  members,  except  those  who  were  so  much  dissatis- 
fied with  the  work  as  to  refuse  thus  to  endorse  it,  placed  their 
signatures  upon  the  document,  indicating  that  it  was  the  su- 
preme law  of  the  new  State.  The  most  peculiar  feature  of 
the  new  government,  though  it  embraced  other  odd  schemes 
which  will  be  spokenof  lateron  in  this  description  of  a  strange 
phase  of  democracy  in  America,  was  the  unicameral  legisla- 
ture of  which  we  have  never  since  had  an  example  in  the 
American  States,  and  which  is  a  prevailing  part  of  the  scheme 
of  government  in  no  important  community  to-day,  though  the 
world  has  been  recently  reminded  of  the  possibility  of  a  re- 
turn to  greater  simplicity  in  this  respect  in  England,  where 
the  Radicals  have,  with  more  or  less  seriousness^  proposed 
the  abolishment  of  the  House  of  Lords.34  Although  this  sub- 
ject had  earlier  been  discussed  in  the  Convention  without 
convincing  the  majority  party  of  the  error  of  their  general 
course,  a  final  effort  in  behalf  of  a  bicameral  legislature  had 

**  Under  these  conditions,  a  writer  in  the  Pennsylvania  Packet,  Feb- 
ruary 13,  1779,  said,  that  "  only  a  few  people  of  Philadelphia  and  its 
neighborhood  could  have  the  least  opportunity  of  examining  it  or  offer- 
ing their  remarks,  which  were  little  regarded,  and  the  Constitution  after 
circulating  a  few  days,  in  print,  about  the  streets  of  Philadelphia,  was 
finally  adopted  with  scarce  any  material  amendments  ".  See  also  Resolu- 
tions of  Town  Meeting  to  protest  against  the  Constitution,  Phila.,  Oct. 
21,  22,  1776. 

"Lecky,  Democracy  and  Liberty,  Vol.  I,  pp.  361  et  seq.  Cf.  Articles 
in  London  Times  on  "  Leeds  and  the  Lords  ",  Sept.  13  and  14,  1894,  and 
"  The  Reform  of  the  House  of  Lords  ",  Nov.  28,  29,  30,  1894. 


FRENCH  ANIT^MERICAN  THOUGHT  19 


been  made  by  the  friends  of  the  English  system  of  checks 
and  balances  only  a  few  days  before  the  adjournment  of  the 
body.  The  motion  to  amend  the  frame  in  this  respect,  and 
to  establish  two  houses  instead  of  one,  was  offered  by  Mr. 
Ross,  the  Vice-President  of  the  Convention,  on  September 
1 6,  and  it  was  seconded  by  Mr.  Clymer  of  Philadelphia,  two 
of  the  leading  minds  in  the  Convention.35  It  was  decided, 
though  the  Minutes  are  silent  as  to  the  vote  on  this  subject, 
that  further  debate  upon  this  point  should  be  precluded,  since 
it  had  been  fully  discussed  before.  There  was  to  be  but  a 
single  house;  conviction  seemed  to  prevail  among  the  mem- 
bers in  respect  of  this  feature  of  the  government.  The  "  su- 
preme legislative  power  ",  as  the  Constitution  describes  it, 
was  to  repose  in  a  "  house  of  representatives  of  the  freemen 
of  the  Commonwealth  or  State  of  Pennsylvania  ",36  whose 
members  were  to  be  chosen  annually  in  the  counties,  each 
county  at  first  returning  an  equal  number,  though  the  basis  of 
representation  was  soon  to  be  changed  to  the  more  equitable 
one  of  taxable  inhabitants. 

Upon  this  single  assembly  was  conferred  almost  absolute 
power.  As  every  suggestion  regarding  a  Senate,  appeared 
in  the  eyes  of  the  Pennsylvania  democrats  to  be  a  movement 
to  establish  an  odious  House  of  Lords,  an  "  upper  "  house, 
whose  very  name  was  inconsistent  with  the  principles  of 
equality,  so  the  term  Governor  smacked  too,  of  royalty,  the 
royal  and  proprietary  colonies  in  America  all  having  had 
Governors.  They  would  therefore  have  no  officer  known  by 
this  name,  and  none,  indeed,  of  any  kind  who  should  stand 
as  an  obstacle  between  the  people  and  the  State.  For  the 
people  were  the  State,  and  the  State  was  the  people.  Like 
Paine,  who  said  in  his  Common  Sense,  that  he  took  his  rule 
from  a  "  principle  in  nature  which  no  art  can  overturn,  viz : 
that  the  more  simple  a  thing  is,  the  less  liable  it  is  to  be  dis- 
ordered, and  the  easier  repaired  when  disordered  ",37  the 
framers  of  the  Constitution  of  Pennsylvania  would  put  no 

35  Cf.  Minutes  of  the  Convention,  p.  51. 

86  Constitution,  sec.  2.  37  Common  Sense,  p.  8. 


20  THE  REFERENDUM  IN  AMERICA 

clog  upon  the  wheels  of  government.  Therefore  there  should 
be  no  Governor,  and  no  one  exercising  the  powers  of  a  Gov- 
ernor. There  should  be  a  plural  executive,  to  be  called  the 
Supreme  Executive  Council,  in  which  was  vested  the  "  su- 
preme executive  power  ",38  and  this  body  was  to  have  a 
President,  who  was  to  be  called  the  President  of  the  State  of 
Pennsylvania,  in  true  republican  form.  The  councilors 
were  to  exert  no  legislative  power  whatsoever  and  they  did 
not  constitute  a  second  house.  They,  with  their  President, 
had  no  negative  upon  the  legislature,  and  were  not  even  au- 
thorized to  offer  their  advice  concerning  the  passage  of  any 
law,  except  in  so  far  as  this  may  have  been  contemplated 
when  it  was  provided  that  the  Council  should  prepare  busi- 
ness to  be  laid  before  the  Assembly.39  Each  county  was  to 
elect  one  councilor  to  serve  for  a  term  of  three  years.  As 
there  were  then  twelve  counties,  it  was  at  first  a  body  there- 
fore of  twelve  members.  One  third  of  the  Council  was  re- 
newed annually,  four  seats  being  vacated  each  year.  In  the 
Constitution  of  our  very  squeamish  democrats,  as  if  an  apol- 
ogy were  needed,  the  following  explanation  of  this  system  is 
found :  "  By  this  mode  of  election  and  continual  rotation, 
more  men  will  be  trained  to  public  business,  there  will  in 
every  subsequent  year  be  found  in  the  Council  a  number  of 
persons  acquainted  with  the  proceedings  of  the  foregoing 
years,  whereby  the  business  will  be  more  consistently  con- 
ducted, and  moreover,  the  danger  of  establishing  an  incon- 
venient aristocracy  will  be  effectually  prevented."  40 

By  the  original  draft  of  the  Constitution,  which  was 
printed  in  Philadelphia  in  September,  the  Assembly  in  addi- 
tion to  its  other  extensive  powers,  was  to  elect  nine  men  from 
outside  its  own  membership  to  compose  the  Council.41  By 
this  deviation  from  the  original  plan,  which  resulted  in  the 
Council  being  made  elective  by  the  people,  the  Assembly  was 

88  Constitution,  sec.  3.  89  Sec.   20.  40  Sec.   19. 

"Pennsylvania  Gazette,  Sept.  18,  1776.— "  The  proposed  pJan  or  frame 
of  government  for  the  Commonwealth  or  State  of  Pennsylvania ", 
sec.  18. 


FRENCH  AND  AMERICAN  THOUGHT  21 

deprived  of  a  very  considerable  part  of  its  authority  over  the 
executive  department  of  the  government,  though  it  was  still 
charged  with  the  task  of  meeting  annually  with  the  members 
of  the  Council,  and  of  electing  by  joint  ballot  from  the  latter 
body,  the  presiding  executive  officers  of  the  State,  a  President 
and  a  Vice-President.42  The  State  treasurer  was  to  be  ap- 
pointed by  the  Assembly,  and  the  delegates  to  the  general 
American  Congress  were  similarly  chosen,  which  was  the  pre- 
vailing method  in  other  States  at  that  time.  It  could  elect, 
removable  at  its  own  pleasure,  a  register  of  wills  and  re- 
corder of  deeds,  in  the  city,  and  in  each  county,  43  and  im- 
peach "  every  officer  of  state,  whether  judicial  or  executive  ", 
the  proceedings  to  be  heard  before  the  President  and  Vice- 
President,  and  a  quorum  of  the  Council.44  The  judges  of  the 
supreme  court  who  were  to  be  appointed  by  the  Council, 
could  be  removed  at  any  time  by  the  Assembly  for  "  misbe- 
havior ",45  Justices  of  the  peace  who  were  elected  by  the 
people  in  the  city  and  counties,  could  in  the  same  way  be  dis- 
placed by  the  Assembly  for  "  misconduct  ",46 

Here,  in  respect  of  the  judiciary  the  principle  of  the  sep- 
aration of  powers,  which  Mr.  Adams  contended  for  was 
grossly  violated.  That  the  judges  should  be  removable  by 
the  legislature  for  "  misbehavior  "  was  a  rule  calculated  to 
bring  about  a  subserviency  in  the  courts  which  was  gravely 
contemplated  by  conservative  men.  That  the  Assembly 
should  be  unchecked  by  a  second  house,  a  governor  or  any 
authority  equal  in  power  and  dignity  in  the  legislative  de- 
partment of  the  government,  was  occasion  for  real  alarm, 
but  that  the  courts  of  justice,  too,  were  to  be  subordinate  to 
this  supreme  single  chamber,  was  a  remarkable  circumstance. 

It  is  true,  there  was  a  fanciful  plan  by  which  the  work  of 
the  Assembly  could  be  reviewed  at  periods  of  seven  years. 
Then  the  people  of  each  county  and  the  city  were  to  elect  a 
body  to  be  called  a  Council  of  Censors.47  This  Council  was  to 

"Sec.  19.  "Sec.  34.  "Sec.  22.  "See.  23. 

"  Sec.  30. 

*TCf.  Rousseau,  Contrat  Social.    Rousseau's  chapter  on  Censors  must 


22  THE  REFERENDUM  IN  AMERICA. 

meet  and  discuss  the  question  whether  during  the  septennial 
period  which  had  just  been  passed  through,  the  Constitution 
had  been  "  preserved  inviolate  in  every  part,  and  whether  the 
legislative  and  executive  branches  of  the  government  have 
performed  their  duty  as  guardians  of  the  people,  or  assumed 
to  themselves  or  exercised  other  or  greater  powers  than  they 
are  entitled  to  by  the  Constitution  ",48  They  were  to  examine 
into  the  collection  and  expenditure  accounts  of  the  govern- 
ment, to  call  for  papers  and  records,  pass  "  public  censures  ", 
order  impeachments  and  "  recommend  "  the  Assembly  to  re- 
peal such  laws  "  as  appear  to  them  to  have  been  enacted  con- 
trary to  the  principles  of  the  Constitution  ". 

The  Assembly  was,  indeed,  restricted  in  one  important  re- 
spect. It  was  specifically  denied  the  power  "  to  add  to,  alter, 
abolish  or  infringe  any  part  of  this  Constitution  ",49  although 
the  tendency  in  the  United  States  in  a  few  years,  was  to  set 
in  strongly  in  the  direction  of  giving  the  State  legislatures 
this  right,  usually,  it  is  true,  only  after  the  assent  of  the 
people  has  been  expressed  in  a  plebiscite,  yet  solely  upon  the 
initiation  of  the  legislature.  In  Pennsylvania,  the  Council 
of  Censors  was  the  only  body  which  could  start  the  machinery 
for  a  change  in  the  Constitution,  be  it  ever  so  small.  By  a 
two-thirds  vote  the  censors  could  summon  a  convention,  and 
this  body  might  then  amend  the  fundamental  law  of  the 
State,  in  the  same  manner  in  which  it  had  been  originally 
established. 

In  order  that  there  might  be  no  suspicion  of  an  hereditary 
system  in  office-holding,  there  was  to  be  frequent  rotation  in 
the  civil  service.  Thus  any  person  who  had  served  as  a 
councilor  for  three  successive  years,  that  is  for  one  term, 
was  not  to  be  capable  of  holding  this  office  again  for  four 
years  afterwards.50  Representatives  in  the  Assembly  were 
not  to  continue  in  their  offices  more  than  four  years  in  any 

have  suggested  this  very  odd  device  to  the  Pennsylvanians  when  they 
were  seeking  for  a  government  which  would  make  them  wholly  free  of 
English  constitutional  usage. 

48  Sec.  47,  *9Sec.  9.  °°  Sec.   19. 


FRENCH  AND  AMERICAN  THOUGHT  23 

seven,51  and  the  terms  of  certain  other  officers  were  also  lim- 
ited by  the  Constitution.52 

It  has  always  been  a  matter  of  interest  among  those  who 
have  written  of  the  early  political  history  of  Pennsylvania — 
few,  unfortunately,  in  number — to  inquire  what  precisely 
were  the  influences  which  led  the  Convention  to  adopt  such  a 
system  of  government,  when  none  of  the  other  colonies 
turned  away  so  lightly  from  custom,  tradition  and  the  advice 
of  good  authorities  on  constitutional  subjects.  It  is  true  that 
Georgia  and  Vermont  in  the  next  year,  1777,  adopted  con- 
stitutions which  in  respect  of  the  single  house  of  legislature, 
at  least,  followed  the  Pennsylvania  plan.53  But  an  examina- 
tion of  these  instruments  will  show  that  they  differ  in  some 
rather  important  respects  from  the  first  Constitution  of  Penn- 
sylvania. Vermont,  on  account  of  a  territorial  question,  was 
not  one  of  the  original  States,  being  admitted  to  the  Union 
only  in  1791,  after  the  adoption  of  the  Federal  Constitution, 
when  the  confederation  had  made  way  for  the  federation, 
the  Staatenbund  for  the  Bunrfesstaat.  Vermont  had  its  Gov- 
ernor and  Lieutenant-Governor,  instead  of  a  President  and 
Vice-President.  There  was  a  Council  in  lieu  of  a  second 
house,  which  was  without  the  power  of  vetoing  legislation, 
however,  quite  as  in  Pennsylvania.  Nevertheless,  it  was  pro- 
vided in  Vermont,  and  this  was  a  difference  of  some  im- 
portance, that  "  to  the  end  that  laws  before  they  are  enacted 
may  be  more  maturely  considered,  and  the  inconveniency  of 
hasty  determination  as  much  as  possible  prevented,  all  bills 
of  public  nature  shall  be  first  laid  before  the  Governor  or 
Council,  for  their  perusal  and  proposals  of  amendment  ".5* 
In  Pennsylvania,  the  only  suggestion  that  delay  might  be  ex- 
pedient, was  contained  in  a  provision  which  placed  the  re- 
sponsibility with  the  people,  rather  than  with  the  councilors. 
51  Sec.  8. 

"For  instance,  sheriffs  and  coroners  in  counties,  sec.  31. 

68  Cf.  Adams'  Works,  Vol.  II,  p.  508,  "  Matlack,  Cannon,  Young  and 
Paine  had  influence  enough  to  get  their  plan  adopted  in  Georgia  and 
Vermont,  as  well  as  Pennsylvania  ". 

M  Con.  of  Vermont,  1777,  sec.  xiv. 


24  THE  REFERENDUM  IN  AMERICA 

This  clause  was  as  follows :  "  All  bills  of  public  nature  shall 
be  printed  for  the  consideration  of  the  people  before  they 
are  read  in  General  Assembly  the  last  time  for  debate  and 
amendment,  and  except  on  occasions  of  public  necessity,  shall 
not  be  passed  into  laws  until  the  next  session  of  Assem- 
bly ",55  The  Governor,  Lieutenant-Governor  and  Treasurer 
in  Vermont,  were  to  be  elected  by  the  people  annually,  instead 
of  by  the  Assembly  as  in  Pennsylvania.56  The  councilors  in 
Vermont  were  elected  by  scrutin  de  liste,  that  is,  on  a  general 
ticket,57  while  in  Pennsylvania  each  county  returned  one 
member.  The  unusual  feature  in  the  Pennsylvania  Consti- 
tution regarding  a  Council  of  Censors  was  carried  over  into 
the  Constitution  of  Vermont.58  As  in  Pennsylvania,  the 
censors  were  to  meet  every  seven  years,  and  for  the  same  pur- 
pose,— to  ascertain  whether  the  Constitution  had  been  "  pre- 
served inviolate  in  every  part",  etc.  The  members  of  the  body, 
however,  were  again  to  be  elected  on  a  general  state  ticket, 
instead  of  by  counties  as  in  Pennsylvania.  This  peculiar  in- 
stitution was  continued  in  the  later  Constitutions  of  Vermont, 
and  it  survived,  indeed,  until  1870,  when  the  section  was 
finally  abrogated.59  By  this  method  many  conventions  were 
assembled,  and  a  number  of  amendments  made  in  the  funda- 
mental law  of  the  State. 

So  early  as  in  1786,  the  Constitution  of  Vermont  of  1777 
was  modified  in  an  important  way,  and  it  was  declared 
specifically  in  that  year  that  "  the  legislative,  executive 
and  judiciary  departments  shall  be  separate  and  distinct,  so 
that  neither  exercise  the  powers  properly  belonging  to  the 
other  ".eo  A  Senate  in  name  and  in  fact,  was,  however,  not 

55  Sec.    15,   Pennsylvania   Constitution. 

08  It  is  true  that  the  councilors  sat  and  voted  with  the  Assembly  in 
the  election  of  a  President  and  Vice-President  in  Pennsylvania,  but  as 
there  were  seventy-two  assemblymen,  and  only  twelve  councilors,  the 
council  was  not  a  very  great  force.  The  Assembly,  however,  was  re- 
stricted in  its  choice  to  two  of  the  twelve  members  of  the  Council.  The 
Constitution  forbade  their  going  outside  that  body  for  candidates. 

BT  Con.  of  Vermont,  sec.  xvii.  E8  Ibid.,  sec.  xliv. 

"Amendments  to  the  Constitution  of  Vermont,  art.  xxv,  sec.  iv. 

60  Constitution  of   1786,  chap.  II,  sec.   6. 


FRENCH  AND  AMERICAN  THOUGHT  25 

introduced  into  the  legislative   system  of  the   State,  until 
i836.61 

Looking  briefly  at  the  Constitution  adopted  in  Georgia 
in  1777,  which  lasted  until  1789,  we  find  that  it  too  deviated 
from  the  Pennsylvania  example.  It  was  a  carelessly  framed 
document.  Though  this  was  not  true  in  any  sense,  it  was 
stated  in  plain  language  that  "  the  legislative,  executive  and 
judiciary  departments  shall  be  separate  and  distinct,  so  that 
neither  exercise  the  powers  properly  belonging  to  the  oth- 
er ",62  The  Council  was  elected  by  the  Assembly  from  its 
own  body,  being  virtually  therefore  a  committee  of  the 
house.63  The  Governor,  bravely  called  by  this  name,  was 
also  an  assemblyman,  annually  elected  to  the  high  post  by  his 
colleagues.64  The  Council  was  not  without  legislative  power, 
though  this  was  only  advisory.  It  was  provided  in  the  Con- 
stitution that  "  all  laws  and  ordinances  shall  be  sent  to  the 
executive  council  after  the  second  reading,  for  their  perusal 
and  advice  ",65  The  bills  submitted  to  it  were  to  be  returned 
to  the  Assembly  by  the  councilors,  with  the  latter's  remarks 
thereon,  within  five  days,68  and  then  came  a  ceremony,  which 
to  the  disciples  of  liberty  and  equality  in  Pennsylvania  would 
have  been  distasteful  to  the  last  degree :  "  A  committee  from 
the  Council  sent  with  any  proposed  amendments  to  any  law 
or  ordinance,  shall  deliver  their  reasons  for  such  proposed 
amendments,  sitting  and  covered;  the  whole  house  at  that 
time  except  the  speaker  uncovered  ".  It  is  sufficiently  plain 
in  face  of  the  provision  establishing  this  undemocratic  rite, 
that  the  Georgian  democrats  were  not  firmly  grounded  in 
the  new  principles  of  government,  as  they  had  lately  been 
expounded  in  Philadelphia.  But  the  single  house  in  Georgia 
was  to  be  abolished  in  1789,  and  another  Constitution  was 
adopted,  in  which  it  was  declared  explicitly  at  the  very  be- 
ginning of  the  instrument  that  "the  legislative  power  shall 
be  vested  in  two  separate  and  distinct  branches;  to  wit,  a 

61  Amendments,   art.   iii.  62Art.   i. 

83  Art.   ii.  84Art.   xxiii. 

65  Art.  viii.  66  Art.  xxvii. 


26  THE  REFERENDUM  IN  AMERICA 

Senate  and  House  of  Representatives,  to  be  styled   the  Gen- 
eral Assembly  ".67 

How,  now,  was  it  that  this  peculiar  system  was  instituted 
in  Pennsylvania,  and  who  was  responsible  for  its  origin  ?  In 
general,  as  has  been  noted  already,  there  are  two  facts  to  be 
considered  in  explaining  the  existence  of  this  radically 
democratic  feeling  in  Pennsylvania,  and  it  was  not  confined 
to  this  State  alone.  Even  in  Massachusetts,  where  John 
Adams'  influence  was  greatest,  and  the  Constitution  which 
he  framed  has  survived  to  this  day,  with  some  relatively 
slight  amendments,  there  was  a  considerable  body  of  senti- 
ment favorable  to  a  single  house.  These  two  facts  were,— 
first,  the  presence  in  the  conventions  of  large  numbers  of  the 
frontiersmen,  who  had  had  contests  in  colonial  days  with  the 
wealthier  property-owning  classes,  living  in  or  near  the  cities. 
Thus  in  Pennsylvania,  there  had  been  a  hostile  feeling  for 
many  years  between  these  elements,  owing  to  the  belief  gen- 
erally entertained,  that  those  who  could  were  not  paying  a 
due  proportion  of  the  public  charges,  in  order  to  defend  and 
advance  the  interests  of  all  the  people,  especially  those  re- 
siding in  the  Western  counties,  who  came  frequently  in 
contact  with  the  Indians.  Secondly,  there  was  a  conviction, 
that  when  the  colonies  were  freeing  themselves  from  Eng- 
land, they  should  discard  English  government  in  toto,  and 
this  feeling  was  intensified  by  the  presence  in  every  com- 
munity of  bodies  of  men  called  Tories,  who  still  continued 
friendly  to  the  motherland,  and  at  once  came  to  be  regarded 
with  distrust,  when  they  were  not  indeed  the  subjects  of  great 
popular  odium.08  Their  influence,  in  so  far  as  they  were 
able  to  exert  any,  was,  of  course,  against  new  constitutions  of 
every  kind  in  the  first  instance,  and  then  against  those  which 
were  most  democratic.  It  is  thus  that  it  was  possible  for  the 

67  Art.  i,  sec.   i. 

08  James  Madison  in  The  Federalist,  no.  xlix,  says  that  the  early  con- 
stitutions of  the  American  States  were  formed  "  in  the  midst  *  *  of  a 
universal  ardor  for  new  and  opposite  forms,  produced  by  the  universal 
resentment  and  indignation  against  the  ancient  government  ". 


FRENCH  AND  AMERICAN  THOUGHT  27 

enthusiasts  in  Pennsylvania  to  do  what  they  had  done  in  the 
Convention,  and  now  to  wage  their  remarkable  campaign  in 
its  defence  which  continued  throughout  the  war,  and  up  to 
the  years  1789  and  1790,  when  the  Constitution,  thoroughly 
discredited,  was  superseded  by  another  of  the  general  Amer- 
ican type. 

As  for  the  scholastic  and  academic  side  of  the  movement, 
which  gave  Pennsylvania  this  Constitution,  it  has  always  been 
the  custom,  and  very  rightfully  indeed,  to  associate  Benjamin 
Franklin's  name  with  the  single-chamber  legislative  system. 
There,  however,  has  been  a  certain  element  of  doubt  respect- 
ing the  actual  part  which  Dr.  Franklin  took,  in  inflicting 
upon  the  State  this  novel  and  highly  original  scheme  of 
government.  There  is  no  room  for  question,  that  his 
leanings  were  wholly  in  the  direction  of  a  single  house, 
though  in  the  real  work  of  framing  the  Constitution,  he 
seems  not  to  have  had  more  than  an  advisory  part.  He  was 
the  President  of  the  Convention,  but  he  was  not  regularly  in 
attendance  at  the  sessions.  He  appended  his  signature  to  the 
instrument,  and  before  the  Convention  adjourned,  a  resolution 
was  passed  by  the  body,  thanking  him  for  the  honor  he  had 
conferred  upon  it  "  by  filling  the  chair  during  the  debates  on 
the  most  important  parts  of  the  Bill  of  Rights  and  Frame  of 
Government,  and  for  his  able  and  disinterested  advice 
thereon  ".C9  There  were  others,  however,  who  were  con- 
cerned in  the  actual  draft  and  these  in  so  far  as  they  have  been 
named  were  Timothy  Matlack,70  James  Cannon,  Dr.  Thomas 
Young,  Thomas  Paine  and  George  Bryan,  the  last  three  not 
having  been  members  of  the  Convention  at  all,  but  the  leading 
spirits  in  a  small  junta,  which  first  by  the  name  of  the  Whig 
Society,  and  later  the  Constitutional  Society,  battled  for  their 

69  Minutes  of  the  Convention,  p.  67. 

70  Timothy  Matlack  was  originally  a  member  of  the  Society  of  Friends, 
but  in  the   Revolution  left  the  sect  and  became,  a  "  Free  Quaker  "   or 
"  Fighting  Quaker  ".     It  is  said  that  he  wore  his  sword  in  the  streets 
of  Philadelphia.     When  asked  what  its  use  was,  he  replied,   "  It  is  to 
defend  my  property  and  my  liberty  ". 


28  THE  REFERENDUM  IN  AMERICA 

beloved  principles  as  valiantly  as  did  La  Rochefoucauld,  Con- 
dorcet,  Mirabeau  and  the  other  friends  of  a  single  legislative 
assembly  and  unrestricted  popular  government  throughout 
a  contemporary  period  in  France.71 

What  Franklin's  part  in  the  work  really  was,  those  who 
lived  at  the  time  have  not  been  very  willing  to  state,  though 
evidence  has  later  been  adduced  in  sufficient  quantity  to  im- 
plicate him  seriously  in  the  framing  of  the  peculiar  instru- 
ment. Dr.  Franklin's  position,  not  only  in  America,  but  in 
the  world  at  large,  was  somewhat  unusual.  He  had  been  in 
France  on  at  least  two  occasions  prior  to  his  long  residence 
there  of  some  nine  years,  while  the  Revolution  was  in  prog- 
ress in  America,  when  he  represented  the  new  States,  an 
important  mission  upon  which  he  embarked  shortly  after  the 
Pennsylvania  Convention  had  adjourned.  The  first  two 
visits  were  made  in  1767  and  1769,  while  he  was  abroad  in 
the  colonial  behalf,  defending  the  American  cause  at  Lon- 
don.72 He  seems  to  have  developed  a  sincere  interest  while 

71  In  speaking  of  Paine's  Common  Sense,  Mr.  Adams  says  that  parts 
of  the  latter  were  merely  meant  to  please  the  Democratic  party  in 
Philadelphia,  at  whose  head  were  Mr.  Matlack,  Mr.  Cannon  and  Dr. 
Young.  *  *  *  Matlack,  Cannon,  Young  and  Paine  had  influence  enough, 
however,  to  get  their  plan  adopted  in  substance  in  Georgia  and  Ver- 
mont, as  well  as  Pennsylvania  ".—Works  of  Jno.  Adams,  Vol.  II,  pp. 
507-8.  "  The  bill  of  rights  is  taken  almost  verbatim  from  that  of  Vir- 
ginia, which  was  made  and  published  two  or  three  months  before  that 
of  Philadelphia  was  begun;  it  was  made  by  Mr.  Mason,  as  that  of 
Pennsylvania  was  by  Timothy  Matlack,  James  Cannon  and  Thomas 
Young  and  Thomas  Paine."— Ibid.  Vol.  Ill,  p.  220.  Cf.  Ibid.  Vol.  IX, 
pp.  617-623.  Alexander  Graydon  in  the  Memoirs  of  His  Own  Time,  Phila- 
delphia, 1846,  p.  285,  says  that  the  Constitution  of  Pennsylvania  "  was 
understood  to  have  been  principally  the  work  of  Mr.  George  Bryan,  in 
conjunction  with  a  Mr.  Cannon,  a  schoolmaster;  and  it  was  severely 
reprobated  by  those  who  thought  checks  and  balances  necessary  to  the 
legitimate  distribution  of  the  powers  of  government.  Doctor  Franklin 
was  also  implicated  in  the  production".  Mr.  Bryan,  Graydon  explains, 
was  a  native  Irishman,  and  it  is  suggested  that  on  this  account  he  was 
opposed  to  the  English  system  of  government.  He  was  later  a  Vice- 
President  and  then  President  of  the  State,  holding  other  offices  under 
the  Constitution,  in  the  defence  of  which  he  was  always  very  loyal. 
Cf.  article  in  Pennsylvania  Gazette,  Oct.  30,  1776. 

"Hale,  Franklin  in  France,  Boston,  1887,  Vol.  I,  pp.  6  et  seq. 


FRENCH  AND  AMERICAN  THOUGHT  29 

in  Paris  in  the  "  Physiocratie  ",  and  made  the  acquaintance 
of  old  Dr.  Quesnay,73  the  elder  Mirabeau,  Turgot,  Dupont 
de  Nemours,  with  whom  his  friendship  was  of  long  dura- 
tion, Dubourg,  who  translated  Franklin's  works  into  French, 
and  others  of  the  "  Economistes  ",  members  of  that  singular 
sect,  who  met  together  and  constructed  imaginary  wealth  out 
of  imaginary  land,  and  carried  politics  and  social  economy 
into  one  of  the  strangest  phases  upon  which  it  has  ever  en- 
tered. They  declared  that  the  peasant,  the  tiller  of  the  soil, 
was  the  only  producer  in  society,  and  Franklin's  mind  seems 
to  have  been  in  so  receptive  a  condition  in  respect  to  political 
subjects,  that  he  embraced  the  cult,  or  at  any  rate  in  a  char- 
acteristic manner  led  his  French  friends  to  think  that  he  was 
one  of  their  number.  Little  doubt  can  remain  on  this  point, 
when  we  consider  his  letter  to  Dupont  of  July  28,  1768,  in 
which  he  acknowledges  the  receipt  of  the  latter's  book  on  the 
"  Physiocratie  " ;  for  here  he  says  that  on  reading  the  work 
he  received  "  a  great  deal  of  instruction  "  from  it,  that  he  is 
"  perfectly  charmed  "  with  the  principles  of  the  "  new  phil- 
osophy ",  which  he  declares  he  "  sincerely  wishes  "  to  "  grow 
and  increase  till  it  becomes  the  governing  philosophy  of  the 
human  species  as  it  must  be  that  of  superior  beings  in  better 
worlds  ".74 

His  interest  in  the  various  eccentric  movements  in  the 
French  intellectual  life  of  the  time,  seems  to  have  been  deep, 
and  they  awakened  in  him  no  sentiments  of  mental  revolt  such 
as  other  men  would  have  felt,  as,  for  instance,  Mr.  Adams, 
whose  political  principles  were  founded  on  historical  knowl- 
edge, and  were  well  and  strongly  denned.  It  was  thus  in 
respect  of  a  single  house,  and  his  other  visionary  and  very 
democratic  views  on  the  subject  of  government,  for  which  he 
cannot  escape  responsibility  in  the  case  of  the  first  Constitu- 
tion of  Pennsylvania.  There  is  enough  historical  testimony 
to-day  to  link  his  name  closely  to  the  names  of  the  other 

78  He   was   ordained   a   "  knight   of   the   order "    by   the   laying   on   of 
hands  by  Dr.  Quesnay.     Adams'  Works,  Vol.  I,  p.  66 1. 
74  Hale,  op.  cit.  Vol.  I,  pp.   13,   14. 


30  THE  REFERENDUM  IN  AMERICA 

men  who  took  a  more  direct  part  in  the  work  of  writing  and 
adopting  the  Constitution,  and  this  testimony  we  may  pro- 
ceed briefly  to  present. 

We  are  told  that  Franklin's  "  participation  in  it  or  appro- 
bation of  it  [the  work  of  the  Pennsylvania  Convention] 
was  roundly  asserted  by  its  fautors  ",75  Mr.  Matlack,  who 
was  in  a  position  to  know  a  great  deal  concerning  the  early 
history  of  the  Constitution,  wrote  in  the  year  1779,  in  a  politi- 
cal controversy  with  Richard  Bache,  that  it  was  largely  the 
work  of  Mr.  Bache's  "  venerable  father-in-law,"  Franklin.70 
He  adds,  and  Mr.  Matlack  was  present  on  that  occasion: 
"  When  the  debate  was  nearly  closed,  Dr.  Franklin  was  re- 
quested by  the  Convention  to  give  his  opinion  on  the  point, 
and  he  declared  it  to  be  clearly  and  fully  in  favor  of  a  legis- 
lature to  consist  of  a  single  branch  as  being  much  the  safest 
and  best." 

There  was  a  little  anecdote  generally  related  at  the 
time,  which  we  will  repeat,  as  Mr.  Adams  gives  it  in  one 
of  his  useful  and  interesting  political  studies.  The  President 
of  the  Convention  having  been  requested  for  his  opinion 
upon  the  subject  of  the  number  of  houses  of  which  a  legis- 
lature should  consist,  rose  and  said  that  "  two  assemblies  ap- 
peared to  him  like  a  practice  he  had  somewhere  seen,  of 
certain  wagoners  who,  when  about  to  descend  a  steep  hill 
with  a  heavy  load,  if  they  had  four  cattle,  took  off  one  pair 
from  before,  and,  chaining  them  to  the  hinder  part  of  the 
wagon,  drove  them  up  hill,  while  the  pair  before,  and  the 
weight  of  the  load  overbalancing  the  strength  of  those  be- 
hind, drew  them  slowly  and  moderately  down  the  hill  ",77 

T5  Graydon's  Memoirs,  p.  285. 

78  Timothy  Matlack  in  an  open  letter  to  Mr.  Bache  in  Pennsylvania 
Packet,  March  30,  1779. 

77  Defence  of  the  Constitutions  of  the  United  States  of  America, 
Adams'  Works,  Vol.  IV,  p.  390.  This  anecdote  is  related  too  by  Gray- 
don,  Memoirs,  p.  285  :  "  The  Doctor,  perhaps  a  sceptic  in  relation  to 
forms  of  government,  and  ever  cautious  of  committing  himself,  had 
thrown  out  an  equivoque  about  a  wagon  with  horses  drawing  in  op- 
posite directions ;  as  upon  the  adoption  of  the  Federal  Constitution, 


FRENCH  AND  AMERICAN  THOUGHT  31 

What  moral  Franklin  meant  to  point  by  his  story  it  would 
be  difficult  to  say  with  defmiteness,  and  so  inconclusive  is 
this  piece  of  evidence,  that  perhaps  it  might  well  be  disre- 
garded altogether.  So  carefully  had  Franklin  concealed  his 
views  from  one  who  should  have  had  unusual  means  of 
knowing  them,  that  in  1787,  John  Adams,  in  ascribing  to 
Franklin  a  sentiment  favorable  to  a  single  house,  spoke  of  it 
as  the  latter's  "  reputed  opinion  ".  "  I  say  reputed  ",  Mr. 
Adams  explains,  "  because  I  am  not  able  to  affirm  that  it  is 
really  his.  It  is,  however,  so  generally  understood  and  re- 
ported, both  in  Europe  and  America,  that  his  judgment  was 
in  opposition  to  two  assemblies,  and  favorable  to  a  single  one, 
that  in  a  disquisition  like  this  it  ought  not  to  be  omitted."  T8 

Franklin's  arrival  in  France  late  in  the  year  1776,  whither 
he  went  as  one  of  the  officially  deputized  agents  of  the  Amer- 
ican Congress,  to  secure  the  sympathy,  and  if  possible  the 
active  aid  of  that  nation  for  the  colonies  in  their  struggle 
against  the  English  crown,  was  the  occasion  of  many  flat- 
tering marks  of  attention.  The  friends  whom  he  had  made 
on  his  earlier  visits,  had  not  forgotten  him.  His  writings 
had  been  widely  circulated  in  Europe,  and  there  were  few 
who  did  not  know  his  name,  and  were  not  prepared  cordially 
to  welcome  him  as  the  representative  of  the  people  who  had 
so  lately  declared  themselves  an  independent  nation.  He  was 
honored  by  the  Academy  of  Sciences  in  Paris.  D'Alembert, 
the  mathematician  and  philosopher,  Condorcet,  the  philoso- 
pher and  encyclopaedist,  Turgot,  the  man  of  letters,  public 
finance  and  statecraft,  the  Duke  de  La  Rochefoucauld,79  and 

he  told  a  pleasant  story  of  a  self-complacent  French  lady  who  nad 
always  found  herself  in  the  right.  But  whether  he  meant  by  his  rustic 
allusion  to  show  his  approbation  to  checks  or  otherwise,  is  an  enigma 
that  has  never  been  solved."  The  anecdote  is  repeated  also  by  Jared 
Sparks,  in  his  Life  of  Franklin,  Works,  Vol.  I,  1840,  p.  409.  Also  by 
Laboulaye,  Histoire  Politique  des  Etats  Unis,  Paris,  1855,  Tome  I, 

P-  367- 

78  Defence,  Vol.  IV,  p.  389- 

79  Louis-Alexandre,  Due  de  La  Roche-Guyon  et  de  La  Rochefoucauld 
d'Anville  was  born  in  1743.     He  was  the  son  of  the  great-granddaughter 
of  the  Duke  de  La  Rochefoucauld,  who  was  the  auth0fe«£.4he  Maximes. 


32  THE  REFERENDUM  IN  AMERICA 

many  other  leaders  of  that  elegant  and  visionary  school  in 
literature  and  science,  of  which  Rousseau,  Diderot  and  Vol- 
taire were  still  more  distinguished  representatives,  received 
"  le  grand  Franklin  "  as  the  living  precursor  of  the  new 
social  order,  of  which  they  had  written  and  said  so  much. 
He  was  looked  to  as  one  of  the  chiefs  of  the  new  democracy, 
the  leading  tenet  of  whose  creed  was  human  equality,  and 
universal  brotherhood,  a  great  idealist  movement,  world  en- 
compassing, comparable  in  some  degree  to  the  socialist  cos- 
mopolitanism that  we  are  confronted  with  to-day.  He  at- 
tired himself  in  what  was  believed  to  be  true  democratic 
simplicity.  With  his  fur-hat  and  other  odd  articles  of  rai- 
ment, the  enthusiastic  disciples  of  J.  J.  Rousseau  saw  in  him 
a  living  image  of  the  old  heroes  and  philosophers  of  Greece 
and  Rome.80  The  American  Constitutions,  and  especially 
that  of  Pennsylvania,  were  translated  into  French.  One  col- 
lection was  published  in  Switzerland  so  early  as  in 
I778,81  and  another  in  1783  at  Franklin's  own  sug- 
gestion, and  under  his  personal  direction,  by  the  Duke  de 
La  Rochefoucauld.82  Franklin  having  been  the  Presi- 
dent of  the  Pennsylvania  Convention,  the  Constitution  of 
that  State  was  looked  upon  as  the  embodiment  of  his 
own  views.  Whether  it  was  the  truth  or  not  there  is  nowhere 
a  record  that  would  tend  to  show  that  he  tried  to  disabuse 
the  minds  of  his  admirers  in  France  of  this  idea.  Europe 
was  allowed  to  draw  the  inference  that  the  Constitution  was 
his  own  work,  and  as  Adams  has  somewhere  said,  it  was  by 
remaining  passive,  and  by  permitting  others  by  indirection,  to 
arrive  at  their  conclusions  without  his  saying  yes  or  no,  that 

She  made  her  home  the  assembling  place  for  philosophers  and  economists 
of  the  eighteenth  century  and  like  her  son  numbered  among  her  friends 
many  notable  personages. 

80  Cf.  Lecky,  History  of  England  in  the  i8th  Century,  New  York,  1882, 
Vol.  IV,  p.  52  ;  Benjamin  Franklin,  Chef  de  la  Democratie  Americaine 
par  M.  Belot,  Lyons,  1886,  p.  5. 

"Jellinek,  Die  Erkl'drung  der  Menschen-und  Buergerrechte,  p.    10. 

82  Cf.  Larousse,  Dictionnaire  Universel  under  "  La  Rochefoucauld  "  ; 
Bors:eaud,  Etablissement  et  Revision  des  Constitutions  en  Amerique  et 
en  Europe,  Paris,  1893,  p.  27. 


FRENCH  AND  AMERICAN  THOUGHT  33 

the  American  "  philosopher  "  increased  his  fame  and  reputa- 
tion. There  was  no  doubt  in  France  then,  and  there  is  little 
among  historians  there  to-day,  that  he  was  the  real  author  of 
this  document.  It  was  everywhere  in  Europe  a  subject 
of  admiration  by  those  who  were  identified  with  the  literary 
movement  which  was  preparing  the  way  for  the  French 
Revolution,  and  which  was  then  at  the  height  of  its  author- 
ity,83 and  they  were  the  leaders  of  the  Revolution  who  at 
Franklin's  death  stopped  in  the  midst  of  their  horrible  career 
of  tyranny  and  murder  to  eulogize  his  memory. 

A  meeting  was  arranged  in  Paris  between  Voltaire  and 
Franklin,  of  which  there  are  different  versions.  These  two 
apostles  of  liberty,  the  old  French  patriarch,  and  the  simple 
friend  of  the  people  from  America,  the  first  to  give  their 
literary  theories  practical  form  in  the  new  republic  of  Penn- 
sylvania, embraced  each  other  amid  the  plaudits  of  a  large 
number  of  onlookers."84  The  interest  which  the  liberal  writers 
of  Europe  had  expressed  in  Pennsylvania,  however,  accord- 
ing to  Laboulaye,  antedated  Franklin's  appearance  upon  the 
scene  in  Paris.  William  Penn  had  been  regarded  as  a  law- 
giver so  wise  and  tolerant,  that  now  it  was  the  most  natural 
thing  in  the  world  for  the  State  to  abolish  the  representative 
system,  which  it  had  almost  done  in  the  Constitution  of 
1776,  and  to  restore  the  people  to  all  their  "  natural "  rights 
and  privileges.  It  was  Penn's  peculiar  service  to  the  liberal 
cause,  we  are  told,  which  "  explains  and  justifies  the  admira- 
tion of  the  last  century  for  the  Republic  of  Pennsylvania. 
Penn  was  for  the  writers  of  the  eighteenth  century  a  phil- 
osopher rather  than  the  leader  of  a  sect.  Philadelphia  was  the 
city  of  toleration;  Pennsylvania  was  the  promised  land  of 
the  philosophers.  *  *  *  In  two  words,  what  Utopia  was 

83  Cf.  Mignet,  Vic  de  Franklin,  12th  edition,  Paris,  1885,  pp.  in 
et  seq.;  P.  A.  Changeur,  Comment  on  dement  un  homme,  1894,  p.  256, 
Laboulaye,  Histoire  Politique  des  Etats  Unis,  Tome  I,  pp.  367  et  seq. 

84  A  most  dramatic  account  of  this  incident  is  contained  in  Belot, 
Benjamin  Franklin,  Chef  de  la  Democratic  Americaine,  Lyons,  1886. 
Cf.  Adams'  Works,  Vol.  Ill,  p.  147,  and  "  Life  of  Voltaire  ",  by  Con- 
dorcet,  Oeuvres  Complete,  Vol.  C,  p.  161. 


34  THE  REFERENDUM  IN  AMERICA 

to  Thomas  More  and  Salentum  to  Fenelon,  Pennsylvania 
was  to  Voltaire  ",85 

It  was  about  this  time,  too,  that  a  print  had  appeared 
in  France.  It  was  sent  on  to  America,  having  been  designed 
and  executed,  it  is  said,  by  a  "  celebrated  hand  ".  It  was 
entitled  "Doctor  Franklin,  Crowned  by  Liberty".  It  ex- 
hibited a  bust  of  Franklin  being  crowned  by  laurel  leaves. 
At  his  right  hand  was  a  globe  with  the  Continent  of  America 
in  view.  In  the  background  and  leaning  on  the  globe,  was 
a  figure  which  was  described  in  the  newspapers  of  the  period 
as  "  the  genius  of  the  Doctor  "  with  the  sword  of  justice  in 
its  right  hand,  while  in  its  left  hand,  falling  open  over  the 
globe,  was  a  scroll  upon  which  was  inscribed  the  words  "  Con- 
stitution of  the  government  of  Pennsylvania  ".86 

To  me  it  does  not  appear  likely  that  the  French  philoso- 
phers were  wholly  indebted  to  Pennsylvania  for  their  opin- 
ions in  respect  of  government,  as  enthusiastically  as  they 
received  Franklin's  Constitution,  and  studied  it  as  the  true 
expression  of  democracy.  It  scarcely  seems  safe,  therefore, 
to  go  so  far  as  Professor  Jellinek  87  would  take  us,  by  infer- 
ence at  least,  in  making  America  the  leader  in  the  democratic 
movement  of  the  eighteenth  century,  since  Turgot,  Condorcet 
and  the  Duke  de  La  Rochefoucauld  were  scarcely  the  dis- 
ciples of  Franklin.  They  were  his  friends,  because  it  would 
appear  of  what  they  thought  he  represented,  not  for  what 
they  actually  knew  about  his  politics.  He  was  influenced, 
in  all  likelihood,  very  much  more  by  them  than  they  by  him, 
a  conclusion  from  which  there  is  no  apparent  avenue  of 
escape. 

It  was  Turgot  that  in  March,  1778,  wrote  a  letter  to  Dr. 
Richard  Price,  an  English  political  writer,  who  had  taken 
an  interest  in  constitutional  subjects  at  this  time,  attacking 
the  American  Constitutions,  in  that  there  was  "  an  unreason- 

85  Laboulaye,  op.  cit.  Tome  I,  pp.  370-71.  See,  too,  Voltaire's  amus- 
ing apostrophe  to  the  Quakers  in  his  Dictionnaire  Philosophique, — 
Article  on  the  Quakers. 

80 Article  in  Pennsylvania  Packet,  March  30,  1779.  "Op.  cit. 


FRENCH  AND  AMERICAN  THOUGHT  35 

able  imitation  of  the  usages  of  England  ".  Different  bodies 
were  established,  the  sovereignty  was  divided,  and  they  had 
then  tried  to  balance  these  different  authorities.  But  one 
Constitution,  that  of  Pennsylvania,  seems  to  have  met  with 
M.  Turgot's  admiration.88  It  was  this  letter  which  led  Adams 
to  write  his  spirited  "  Defence  of  the  Constitutions  of  the 
United  States  of  America  against  the  attack  of  M.  Turgot ", 
etc.,  a  work  in  three  volumes,  which  exerted  an  important 
influence  in  the  Federal  Convention  of  1787.  It  is  an 
historical  writing  upon  which  the  author  expended  a  very 
great  deal  of  effort,  while  representing  the  American  States 
at  London.89 

88  Adams'    Works,  Vol.   IV,  p.   278. 

89  In  a  letter  to  John  Taylor  Mr.  Adams  says :  "  M.  Turgot  had  seen 
only  the  Constitutions  of  New  York,  Massachusetts  and  Maryland,  and 
the  first  Constitution  of  Pennsylvania.    His  principal  intention  was  to 
censure  the  three  former.  *  *  *  The  drift  of  my  whole  work  was  to 
vindicate  these  three  Constitutions  against  the  reproaches  of  that  great 
statesman,  philosopher  and  really  excellent  man,  whom  I  well  knew  ". 
— Works,  Vol.  VI,  p.  486.     Again  he  says  :  "  Franklin,  Turgot,  Roche- 
foucauld and  Condorcet,  under  Tom.  Paine,  were  the  great  masters  of 
that   academy"    [the   School   of   folly]. — Ibid.,   Vol.   VI,   p.   403.      No- 
where else  has  Adams  summed  up  his  work  in  combating  the  French 
philosophy  so  well   as   in  the   following  passages:   "In    1775   and    1776 
there  had  been  great  disputes  in   Congress   and  in  the  several   States, 
concerning   a  proper   constitution   for   the   several    States   to   adopt   for 
their  government.    A  Convention  in  Pennsylvania  had  adopted  a  govern- 
ment in  one  representative  assembly,  and  Dr.  Franklin  was  the  President 
of  that   Convention.      The   Doctor,   when   he   went  to   France   in    1776, 
carried  with  him  the  printed  copy  of  that  Constitution,  and  it  was  im- 
mediately propagated  through  France  that  this  was  the  plan  of  govern- 
ment  of   Mr.    Franklin.      In   truth,   it  was   not   Franklin,   but   Timothy 
Matlack,  James  Cannon,  Thomas  Young,  and  Thomas  Paine,  who  were 
the  authors  of  it.     Mr.   Turgot,  the  Duke  de  La  Rochefoucauld,   Mr. 
Condorcet   and   many   others,   became   enamored   with   the    Constitution 
of  Mr.  Franklin.     And  in  my  opinion,  the  two  last  owed  their  final  and 
fatal  catastrophe  to  this  blind  love.     In  1780,  when  I  arrived  in  France, 
I  carried  a  printed  copy  of  the  report  of  the  Grand  Committee  of  the 
Massachusetts  Convention,  which  I  had  drawn  up  ;  and  this  became  an 
object   of   speculation.      Mr.    Turgot,    the   Duke    de    La    Rochefoucauld, 
and   Mr.    Condorcet    and   others,    admired    Mr.    Franklin's    Constitution, 
and   reprobated   mine.      Mr.    Turgot   in    a   letter   to    Dr.    Price,   printed 
in    London,    censured    the    American    Constitution    as    adopting    three 
branches  in  imitation  of  the  Constitution  of  Great  Britain.    The  inten- 


36  THE  REFERENDUM  IN  AMERICA 

Mirabeau  followed  Turgot  in  a  pamphlet  enforcing  the 
views  of  the  latter  in  respect  of  the  merit  of  a  simple  cen- 
tralized government.  Condorcet's  sympathy  with  the  same 
philosophy  is  not  to  be  mistaken,  and  his  sentiments  may 
be  gleaned  from  more  than  one  of  his  writings.90  The  Duke 
de  La  Rochefoucauld  was  a  firm  believer  in  the  same  prin- 
ciples and  in  his  Eulogy  of  Franklin  in  1790,  in  speaking  of 
the  American  philosopher's  political  views,  gave  him  un- 
measured praise  for  the  authorship  of  the  Pennsylvania 
Constitution.  The  Duke  on  this  occasion  said :  "  Franklin 
alone  disengaging  the  political  machine  from  those  multiplied 

tion  was  to  celebrate  Franklin's  Constitution  and  condemn  mine.  I 
understood  it,  and  undertook  to  defend  my  Constitution,  and  it  cost  me 
three  volumes.  In  justice  to  myself,  however,  I  ought  to  say  that  it 
was  not  the  miserable  vanity  of  justifying  my  own  work,  or  eclipsing 
the  glory  of  Mr.  Franklin's  that  induced  me  to  write.  I  never  thought 
of  writing  till  the  Assembly  of  Notables  in  France  had  commenced  a 
revolution  with  the  Duke  de  La  Rochefoucauld  and  Mr.  Condorcet  at 
their  head,  who  I  knew  would  establish  a  government  in  one  assembly, 
and  that  I  knew  would  involve  France  and  all  Europe  in  all  the  horrors 
we  have  seen ;  carnage  and  desolation  for  fifty,  perhaps  for  a  hundred, 
years.  At  the  same  time  every  western  wind  brought  us  news  of  town 
and  county  meetings  in  Massachusetts,  adopting  Mr.  Turgot's  ideas, 
condemning  my  Constitution,  reprobating  the  office  of  governor,  and  the 
assembly  of  the  Senate,  as  expensive,  useless  and  pernicious,  and  not 
only  proposing  to  toss  them  off,  but  rising  in  rebellion  against  them. 
In  this  situation  I  was  determined  to  wash  my  hands  of  the  blood  that 
was  about  to  be  shed  in  France,  Europe  and  America,  and  show  to  the 
world  that  neither  my  sentiments  nor  actions  should  have  any  share  in 
countenancing  or  encouraging  any  such  pernicious,  destructive  and  fatal 
schemes.  *  *  *  I  was  personally  acquainted  with  Mr.  Turgot,  the 
Duke  de  La  Rochefoucauld  and  Mr.  Condorcet.  They  were  as  amiable, 
as  learned  and  as  honest  men  as  any  in  France.  But  such  was  their 
inexperience  in  all  that  relates  to  free  government,  and  so  obstinate 
their  confidence  in  their  great  characters  for  science  and  literature, 
that  I  should  trust  the  most  ignorant  of  our  honest  town  meeting 
orators  to  make  a  Constitution,  sooner  than  any  or  all  of  them  ". — John 
Adams'  letter  to  Samuel  Perley,  June  19,  1809,  Works,  Vol.  IX,  pp.  621 
et  seq,  CL  ibid.,  Vol.  IV,  p.  389. 

"°  See  particularly  Quatres  lettres  d'un  Bourgeois  de  New  Haven,  sur 
I'Unite  de  la  Legislation  which  drew  out  Adams'  Discourses  on  Davila. 
These  four  letters  are  published  in  the  first  volume  of  Mazzei's  Re- 
cherches  historiques  et  politiques  sur  les  Etats  Unis  de  I'Ameriquc  sep- 
tentrionale ;  cf.  also  Condorcet's  Eloge  de  Franklin. 


FRENCH  AND  AMERICAN  THOUGHT  37 

movements,  and  admired  counterpoises  that  rendered  it  so 
complicated,  proposed  the  reducing  it  to  the  simplicity  of  a 
single  legislative  body.  This  grand  idea  startled  the  legisla- 
tors of  Pennsylvania,  but  the  philosopher  removed  the  fears 
of  a  considerable  number,  and  at  length  determined  the 
whole  to  adopt  a  principle  which  the  national  assembly  has 
made  the  basis  of  the  French  Constitution  ".  In  a  note  to 
the  above  passage  in  the  printed  edition  of  his  oration,  the 
Duke  de  La  Rochefoucauld,  on  the  subject  of  a  single  legis- 
tive  assembly,  added  the  following  remarks :  "  Franklin  was 
the  first  who  dared  to  put  this  idea  into  practice.  The  respect 
the  Pennsylvanians  entertained  for  him  induced  them  to 
adopt  it;  but  the  other  States  were  terrified  at  it,  and  even 
the  Constitution  of  Pennsylvania  has  since  been  altered.  In 
Europe  this  opinion  has  been  more  successful.01  When  I  had 
the  honor  to  present  to  Franklin  the  translations  of  the  Con- 
stitutions of  America  the  minds  of  people  on  this  side  the 
Atlantic  were  scarcely  better  disposed  toward  it  than  those 
on  the  other  side ;  and  if  we  except  Dr.  Price  in  England,  and 
Turgot  and  Condorcet  in  France,  no  man  who  applied  him- 
self to  politics  agreed  in  opinion  with  the  American  phil- 
osopher. I  will  venture  to  assert  that  I  was  of  the  small 
number  of  those  who  were  struck  with  the  beauty  of  the 
simple  plan  he  traced,  and  that  I  saw  no  reason  to  change 
my  opinion  when  the  national  assembly  led  by  the  voice  of 
those  deep  thinking  and  eloquent  orators  who  discussed  that 
important  question,  established  it  as  a  principle  of  the  French 
Constitution  that  legislation  should  be  confided  to  a  single 
body  of  representatives.  It  will  not  perhaps  be  deemed  un- 
pardonable to  have  once  mentioned  myself  at  a  time  when  the 
honor  I  have  of  holding  a  public  character  makes  it  my  duty 
to  give  an  account  of  my  sentiments  to  my  fellow  citizens. 
France  will  not  relapse  into  a  more  complex  system,  but  will 
assuredly  acquire  the  glory  of  maintaining  that  which  she 
has  established,  and  give  it  a  degree  of  perfection,  which, 

91  Rochefoucauld  himself  soon  after  met  his  death  from  a  mob,  as  a 
result  of  the  success  which  the  "  opinion "   gained  in   France. 


38  THE  REFERENDUM  IN  AMERICA 

by  rendering  a  great  nation  happy,  will  attract  the  eyes  and 
the  applauses  of  all  Europe,  and  of  the  whole  world."  92 

Such  eloquent  words  would  have  better  graced  a  worthier 
cause  than  this  one,  which  had  already  been  wholly  dis- 
credited in  Pennsylvania,  and  was  leading  France  into  a 
period,  the  darkest  and  gloomiest  in  her  whole  history.  The 
sympathy  the  members  of  this  group  felt,  the  one  for  the 
other,  is  indicated  in  Franklin's  correspondence  in  a  letter 
dated  Paris,  February  8,  I786,93  after  his  return  to  America, 
and  his  election  to  the  Presidency  of  Pennsylvania,  which  the 
"  Constitutionalists  "  and  "  Anti-Constitutionalists  "  united 
in,  asking  him  to  accept.94  In  complimenting  Franklin  upon 
the  resolution  he  had  shown  in  the  face  of  the  demands  which 
had  been  made  upon  him,  and  transmitting  the  friendly  re- 
gards of  Condorcet,  the  Duke  de  La  Rochefoucauld  said: 
"  I  know  that  two  powerful  and  nearly  equal  parties  support 
different  principles  as  the  basis  of  the  Constitution;  but  no- 
body is  better  qualified  than  yourself  to  conciliate  both  of 
them,  and  to  obtain  not  perhaps  the  Constitution,  most 
absolutely  perfect,  but  at  least,  as  Solon  said,  the  best  which 
your  fellow  citizens  are  able  to  bear.  This  is  the  critical 
moment  for  the  Americans.  The  return  of  peace  and  the 
certainty  of  independence  demand  of  them  a  general  revision 
of  their  laws,  and  the  formation  of  new.  codes,  no  longer  a 
servile  imitation  of  the  laws  of  England,  but  dictated  by  rea- 
son, conformed  to  their  actual  situation,  and  adapted  to  insure 
the  happiness  of  states  and  individuals.  In  legislation  you 
must  be  the  teachers  of  the  world." 

In  two  letters  to  his  friend  in  France,  M.  LeVeillard,  who 

92  Memoirs  of  the  Life  and  Writings  of  Benjamin  Franklin,  by  Wm. 
Temple  Franklin,  London,  1818,  Vol.  I,  p.  303.  Temple  Franklin  says 
here  that  the  Pennsylvania  Constitution  of  1776  "may  be  considered 
as  a  digest  of  Dr.  Franklin's  principles  of  government.  The  single 
legislature  and  the  plural  executive  appear  to  have  been  his  favorite 
tenets." 

03  Sparks,  Vol.  X,  p.  247. 

84  Cf.  Letter  of  Franklin  to  the  Duke  de  La  Rochefoucauld,  Phila., 
April  15,  1787,  in  Temple  Franklin's  Collection  Vol.  II,  p.  97. 


FRENCH  AND  AMERICAN  THOUGHT  39 

was  another  loyal  adherent  of  the  same  philosophy,  Franklin 
expresses  his  views  regarding  the  plan  for  two  chambers  in 
the  Federal  system,  as  arranged  for  by  the  new  Constitution 
of  the  United  States,  of  1787.  In  the  first  letter,  he  says :  "  I 
am  of  opinion  with  you  that  the  two  chambers  were  not 
necessary,  and  I  disliked  some  other  articles  that  are  in  the 
proposed  plan  ",95  And  in  the  second  letter  he  says :  "  As 
to  the  two  chambers,  I  am  of  your  opinion  that  one  alone 
would  be  better,  but,  my  friend,  nothing  in  human  affairs  and 
schemes  is  perfect,  and  perhaps  this  is  the  case  of  our  opin- 
ions."86 

If  any  further  evidence  were  needed  to  indicate  what 
were  Franklin's  sympathies  at  the  time  of  the  adoption  of 
the  Pennsylvania  Constitution,  or  what  they  had  come  to  be 
as  a  result  of  his  long  residence  in  France,  it  should  be  sup- 
plied in  a  paper  attributed  to  Franklin,  and  published  as  his 
in  William  Temple  Franklin's  collection  of  his  writings,91 
under  the  rubric  "  Queries  and  Remarks  on  a  paper  entitled 
'  Hints  for  the  members  of  the  Convention ' ".  These 
"  Hints  "  were  originally  published  in  a  newspaper  appearing 
in  Carlisle,  Pa.,  being  reprinted  in  the  Federal  Gazette, 
November  3,  1789,  and  also  in  some  of  the  other 
Philadelphia  journals.  The  articles  were  signed  "  A 
Farmer  ",  and  were  strongly  written  arguments  for  a  re- 
vision of  the  Constitution  of  the  State  of  Pennsylvania,  so 
that  its  form  would  be  put  in  harmony  with  the  other  Amer- 
ican governments.  To  these  a  reply,  ascribed  to  Dr.  Franklin, 
was  addressed,  and  it  is  a  defence  of  the  Constitution  of  1776, 
so  vigorously  worded  that  if  it  is  an  authentic  document, 
which,  from  its  style  it  would  appear  to  be,  there  can  be  no 
question  raised  hereafter  as  to  Franklin's  true  position  re- 
specting two  legislative  chambers.98 

98  Letter  to  LeVeillard,  dated  Phila.,  April  22,  1788,  in  Temple  Frank- 
lin, Vol.  I,  p.  391. 

"'Letter  to  I.eVeillard,  Phila.,  Oct.  24,  1788,  ibid.  Vol.  I,  pp.  395-96. 

w  Vol.  I,  Appendix  no.  9. 

98  The  writer  has  been  unable  to  find  these  "  Queries  and  Remarks  " 


40  THE  REFERENDUM  IN  AMERICA 

Assuming  that  Franklin  was  the  author  of  this  paper, 
which  it  seems  perfectly  safe  to  do,  we  find  that  here  again 
he  defended  the  plural  executive,  and  doubted  the  expediency 
of  placing  a  single  individual  in  such  a  place  of  power  as 
the  Governor's  seat.  It  was  desired  that  Pennsylvania  should 
have  a  Governor  like  the  other  States,  a  system  which 
Franklin  professed  to  think  would  gravely  imperil  demo- 
cratic institutions.  In  order  to  secure  "  independence  and 
stability  of  administration  ",  it  had  been  asserted  that  the 
chief  magistrate  should  be  "  beyond  the  reach  of  every  annual 
gust  of  folly  and  of  faction  ".  "  Does  not  this  reasoning  ", 
Franklin  inquired,  "  aim  at  establishing  a  monarchy  at  least 
for  life,  like  that  of  Poland?" 

In  respect  of  the  legislature  of  two  chambers,  Franklin 
pointed  to  the  unfortunate  experiences  which  the  colony  had 
had  with  a  second  branch,  in  which  the  proprietary  family 
and  the  aristocratic  element  were  often  successful  in  defeat- 
ing the  popular  will.  The  influence  which  the  unusually  pro- 
longed and  bitter  contests  with  the  proprietors  had  exerted 
upon  Franklin's  mind,  and  no  doubt  upon  the  minds  of  many 
other  men  who  were  now  the  advocates  of  a  single  house  of 
assembly  in  Pennsylvania,  is  here  clearly  indicated.  "  How 
many  delays,"  he  says,  "  and  what  great  expenses  were  oc- 
casioned in  carrying  on  the  public  business,  and  what  a  train 
of  mischiefs,  even  to  the  preventing  of  the  defence  of  the 
province  during  several  years,  when  distressed  by  an  Indian 
war,  by  the  iniquitous  demand  that  the  proprietary  property 
should  be  exempt  from  taxation !  "  "  He  predicted  long  dis- 
putes between  the  chambers,  were  there  two  co-equal  in 
authority,  and  pointed  to  the  experience  in  some  neighboring 
States,  where  with  two  bodies  serious  deadlocks  then  existed. 

The  rather  amusing  suggestion  was  offered  that  so  little 
public  wisdom  might  be  at  hand,  that  were  it  divided  be- 

arnong  any  of  the  other  collections  of  Franklin's  writings.    As  the  paper 
is  so  positive  and  unequivocal  in  its  language,  an  investigation  as  to  its 
source  would  be  an  interesting  historical  study. 
99  Cf.  Laboulaye,  op.  cit.,  Tome  I,  p.  367. 


FRENCH  AND  AMERICAN  THOUGHT  4* 

tween  two  houses,  each  would  perhaps  be  "  too  weak  "  to 
"  support  a  good  measure  or  obstruct  a  bad  one  ".  The  pres- 
ence of  a  plural  legislature  in  England  was  due,  he  argued, 
to  the  "  pre-existing  prevalence  of  an  odious  feudal  system  ". 
The  proposal  that  the  two  branches  should  be  elected  by  dif- 
ferent interests,  one  representing  wealth,  the  other  being  a 
more  popular  body,  he  found  to  be  "  contrary  to  the  spirit  of 
all  democracies  ".  With  two  houses  there  was  an  assump- 
tion "  that  wisdom  is  the  necessary  concomitant  of  riches  ". 
He  illustrated  his  dislike  of  two  chambers  by  telling  another 
characteristic  anecdote.  "  Has  not  the  famous  political  fable 
of  the  snake  with  two  heads  and  one  body  some  useful  in- 
structions contained  in  it  ?  "  he  inquired.  "  She  was  going 
to  a  brook  to  drink,  and  in  her  way  was  to  pass  through  a 
hedge,  a  twig  of  which  opposed  her  direct  course.  One  head 
chose  to  go  on  the  right  side  of  the  twig,  the  other  on  the  left, 
so  that  time  was  spent  in  the  contest,  and  before  the  decision 
was  completed,  the  poor  snake  died  of  thirst ". 

Franklin  concluded  this  rather  passionate  defence  of  the 
existing  Constitution  of  Pennsylvania  as  follows :  "  I  am 
sorry  to  see  a  disposition  among  some  of  our  people  to  com- 
mence an  aristocracy,  by  giving  the  rich  a  predominancy  in 
government,  a  choice  peculiar  to  themselves  in  one  half  the 
legislature  to  be  proudly  called  the  upper  house,  and  the  other 
branch  chosen  by  the  majority  of  the  people  degraded  by  the 
denomination  of  the  lower,  and  giving  to  this  upper  house  a 
permanency  of  four  years,  and  but  two  to  the  lower  I  hope, 
therefore,  that  our  representatives  in  the  Convention  will  not 
hastily  go  into  these  innovations,  but  take  the  advice  of  the 
prophet, — '  Stand  in  the  old  ways,  view  the  ancient  paths. 
Consider  them  well ;  and  be  not  among  those  that  are  given  to 
change '  ". 

It  would  be  hard  to  think  of  any  quotation  of  which 
Franklin  was  so  fond,  more  inappropriate  in  this  connection, 
than  an  appeal  now  "  to  stand  in  the  old  ways  ",  if  he  meant 
this  to  be  an  argument  for  the  retention  of  a  Constitution 
which  was  one  fabric  of  innovations.  Throughout  all  these 


42  THE  REFERENDUM  IN  AMERICA 

thirteen  years  since  it  had  been  adopted,  the  chief  objection 
to  it  had  been  that  it  was  new,  and  in  total  disaccord  with  the 
habits,  desires  and  traditions  of  the  British  people,  of  which 
the  Pennsylvanians  were  still  a  living  branch.  The  Declara- 
tion of  Independence  had  not  made  them  over  again.  It 
was  not  more  possible  then,  than  it  is  to-day,  to  "  create  "  con- 
stitutions, and  to  introduce  legal  and  political  forms  which 
have  no  basis  in  the  empirical  knowledge  of  men  as  they  con- 
duct themselves,  in  reference  to  other  men  as  members  of 
society.  Therefore,  we  may  conclude,  if  our  testimony  here 
is  trustworthy,  that  whether  or  not  Franklin  had  a  direct  part 
in  originally  framing  the  Constitution  of  Pennsylvania  of 
1776,  he  was  at  any  rate  a  loyal  defender  of  its  principles. 

Franklin's  character  in  a  general  way  is  a  hackneyed 
theme.  Considerations  as  to  his  life  and  influence  do  not 
concern  us  here,  except  as  they  tend  to  show  the  close  connec- 
tion which  existed  between  French  and  American  thought  at 
this  period,  thus  giving  us  a  clearer  insight  into  a  most  pe- 
culiar phase  of  the  development  of  popular  government  in  this 
country.  It  seems  to  be  accepted  that  what  Franklin  achieved 
in  France,  in  securing  that  nation's  aid  in  behalf  of  the  colo- 
nies, was  not  due  to  his  friendship  for  two  chambers  or  one 
chamber  of  legislature,  or  "  liberty  ",  or  the  French  school  of 
philosophy,  which  then  appears  to  have  had  no  representative 
in  the  government,  M.  Turgot  having  already  been  dismissed 
from  his  high  place  in  the  state.  In  the  cabinet  of  Louis 
XVI.  "  generosity  of  spirit  or  sympathy  with  liberty  was  not 
even  thought  of  "  as  a  motive  for  the  alliance  with  the 
American  states.100  France's  course  was  determined  on  in 
order  to  humiliate  and  break  the  power  of  Great  Britain. 
There  may  have  been  other  considerations  which  impelled 
French  volunteers  to  cross  the  ocean  and  enlist  under  the 
American  standard,  but  that  is  quite  a  different  matter.  It 
would  be  a  mistake  not  to  make  allowance  for  the  fact  that 
Franklin's  universal  reputation  as  a  philosopher,  had  con- 
stituted him  a  much  more  useful  representative  of  this  gov- 

100  Chas.  Francis  Adams'  "  Life  of  John  Adams  ",  Works,  Vol.  I,  p.  309. 


FRENCH  AND  AMERICAN  THOUGHT  43 

ernment  in  France,  than  he  otherwise  could  have  been.  How 
his  fame  had  been  gained,  would  form  a  rather  curious  study, 
though  it  could  not  affect  the  result,  and  history  has  definitely 
assigned  him  a  high  place  among  the  founders  of  the  Ameri- 
can nation.  To  regard  him  as  a  scientist  and  philosopher, 
which  was  the  habit  of  the  time,  would  reflect  very  greatly 
upon  the  state  of  the  development  of  science  and  philosophy 
in  the  i8th  century.  Neither,  of  course,  then  enjoyed  a  very 
high  position,  as  we  understand  the  terms  to-day.  The 
physicists  would  scarcely  now  claim  Dr.  Franklin  as  an  ex- 
ponent of  their  science,  and  yet  he  was  regarded  by  large 
numbers  of  people  at  that  time,  as  a  greater  one  than  Newton. 
No  one  would  think  of  placing  Franklin's  name  among  the 
immortals  in  a  history  of  philosophy,  a  peer  of  Leibnitz,  for 
instance,  with  whose  name  his  was  often  coupled  also. 

If  philosophy  is  the  science  of  all  the  sciences,  as  we  are 
disposed  to  think  to-day,  it  is  not  likely  that  Dr.  Franklin 
could  have  been  a  master  in  this  great  empire  of  knowledge. 
His  own  early  education  was  deficient,  as  Mr.  Charles  Francis 
Adams  somewhere  observes  in  explanation  of  Franklin's 
erratic  ideas  on  many  subjects.  If  we  view  him  as  a  po- 
litical philosopher,  Mr.  Adams'  words  seem  almost  too  chari- 
table, and  yet  among  philosophers,  none  then  appeared  to 
have  more  general  appreciation  and  respect,  either  in  this 
country  or  in  Europe.  He  was  himself  the  member  of 
learned  societies  abroad,  and  nearly  all  his  friends  in  France 
were  proposed  for  and  elected  to  membership  in  his  Philo- 
sophical Society  in  Philadelphia.  His  scientific  reputation 
was  truly  a  "  phenomenon  "  as  Mr.  John  Adams  says  in  one 
of  his  amusing  estimates  of  the  man.101  Leibnitz,  Newton, 
Frederick  of  Prussia  and  Voltaire,  all  seemed  like  lesser  stars 
in  the  firmament  to  great  multitudes  of  people.102  The  fe- 

101  Adams'  Works,  Vol.  I,  p.  649,  Appendix,  Adams'  letter  to  Boston 
Patriot  in  1811. 

"  His  name  was  familiar  to  government  and  people,  to  kings, 
courtiers,  nobility,  clergy  and  philosophers,  as  well  as  plebeians,  to 
such  a  degree  that  there  was  scarcely  a  peasant  or  a  citizen,  a  valet  de 
chambre,  coachman  or  footman,  a  lady,  chambermaid  or  a  scullion  in  a 


44  THE  REFERENDUM  IN  AMERICA 

male  sex  knew  his  name  in  connection  with  the  service 
he  rendered  them  in  increasing  their  assurance  during  thun- 
derstorms, by  reason  of  the  iron  points  which  he  placed  upon 
buildings  to  lead  the  lightning  down.  The  printers  all 
claimed  him  as  one  of  their  guild,  and  they  eulogized 
him  in  whatever  country  newspapers  were  published.  He 
was  looked  upon  as  the  friend  of  all  churches,  and  again 
as  a  French  atheist.103  In  politics  he  was  always  a  friend  of 
government  in  its  most  popular  forms,  a  politician  wherever 
he  turned,  rather  than  a  scientist  or  a  great  statesman  whose 
work  will  live  through  time,  as  universally  familiar  as  his 
contemporaries  were  with  his  name.  It  would  be  a  serious 
error,  therefore,  to  underestimate  Franklin's  influence  in 
America  and  in  France  and  to  allege  that  he  was  not  a  power- 
ful factor  in  shaping  the  political  ideas  of  his  fellow  men, 
who,  in  many  circles,  respected  him  so  highly,  if  we  can  show 
that  he  had  definite  convictions  in  regard  to  the  philosophy 
of  government,  which  has  been  the  sole  object  of  the  studies 
that  have  resulted  in  my  writing  the  present  chapter. 

kitchen,  who  was  not  familiar  with  it,  and  who  did  not  consider  him  a 
friend  to  human  kind.  When  they  spoke  of  him,  they  seemed  to  think 
that  he  was  to  restore  the  golden  age.  *  *  *  To  develop  that  com- 
plication of  causes  which  conspired  to  produce  so  singular  a  phenom- 
enon, is  far  beyond  my  means  or  forces.  Perhaps  it  can  never  be  done 
without  a  complete  history  of  the  philosophy  and  politics  of  the 
eighteenth  century.  Such  a  work  would  be  one  of  the  most  important 
that  ever  was  written ;  much  more  interesting  to  this  and  future  ages, 
than  the  '  Decline  and  Fall  of  the  Roman  Empire  ',  splendid  and  use- 
ful as  that  is." — Works,  Vol.  I,  p.  660. 
108  Ibid. 


CHAPTER  II 

THE   DOWNFALL   OF   FRANKLIN'S   GOVERNMENT   IN   PENNSYL- 
VANIA 

THE  Pennsylvania  Constitution  of  1776  was  destined  to 
have  an  unusually  chequered  career,  all  of  which  may  be  only 
briefly  outlined  here.  A  considerable  number  of  the  members 
of  the  Convention  had  refused  to  sign  it,  in  this  way  express- 
ing their  dissatisfaction  with  the  instrument.  Among  the 
number  were  George  Ross,  the  Vice-President  of  the  Con- 
vention, who  presided  in  Franklin's  absence,  and  George 
Clymer.  Very  vigorous  opposition  to  the  Constitution  was 
developed  in  Philadelphia,  so  soon  as  the  frame  of  govern- 
ment was  made  public.  Thomas  McKean,  who  was  the 
President  of  the  provincial  conference  from  which  the  conven- 
tion derived  its  powers,  and  of  whom  it  was  said  that  without 
book  or  written  document  of  any  kind,  he  one  night  drew  up 
an  instrument  of  government,  which,  with  very  little  change, 
was  approved  and  adopted  as  the  Constitution  of  the  State 
of  Delaware,1  John  Dickinson,  Dr.  Benjamin  Rush,  Col- 
onel John  Bayard  and  James  Wilson,  to  name  but  a  few  of  the 
eminent  men  of  the  city  numbered  among  the  Anti-Consti- 
tutionalists, openly  expressed  their  dissent  with  the  new 
principles.  Public  meetings  were  called,  and  were  largely 
attended,  resolutions  were  adopted,  and  many  objections  to 
the  new  Constitution  were  stated  in  cxtenso.  It  was  declared 
;<  That  the  said  Constitution  differs  not  only  unnecessarily 
from  that  to  which  the  people  have  been  accustomed,  but  in 
many  important  articles  from  every  government  that  has 
lately  been  established  in  America  on  the  authority  of  the 
people,  from  the  sentiments  of  the  honorable  Continental 

1  Called  for  this  reason  the  ''  Lycurgus  of  Delaware  State ".  Cf. 
article  in  Pennsylvania  Gazette,  October  30,  1776. 

45 


46  THE  REFERENDUM  IN  AMERICA 

Congress  respecting  government,  from  those  of  the  most  dis- 
tinguished authors  who  have  deliberately  considered  that 
subject  ".2 

It  was  proposed  in  order  to  defeat  the  purposes  of  the  Con- 
vention, and  secure,  if  possible,  another  government,  that 
at  the  first  election  under  the  Constitution,  which  was  to 
occur  on  November  5,  1776,  the  electors  and  election  officers 
should  refuse  to  take  an  objectionable  oath  of  fealty  to  the 
State  which  the  Convention  had  prescribed  ;3  that  the  assem- 
blymen when  they  should  be  elected,  should  not  take  an  offen- 
sive religious  oath,  which  was  too  liberal,  and  was  considered 
to  look  toward  atheism.4  It  was  recommended  that  council- 
ors should  not  be  chosen  at  the  elections  in  November,  of 
which  officers  it  will  be  noted  each  county  was  to  return  one. 
The  new  Assembly,  it  was  declared,  ought  to  have  "  full  pow- 
ers to  make  such  alterations  and  amendments  "  in  the  Consti- 
tution as  the  members  might  consider  to  be  necessary  and 
proper.6 

As  a  consequence,  in  the  elections  of  November  in  Phila- 
delphia city  and  Philadelphia  county,  the  oaths  were  omit- 
ted, and  councilors  were  not  chosen, — quite  in  accordance 
with  the  plan  which  had  been  concertedly  agreed  upon. 
Anti-Constitutional  candidates  were  elected  to  the  Assembly, 
and  it  was  understood  that  when  they  met  they  should  at 
once  proceed  to  a  revision  of  the  Constitution.  From  other 
parts  of  the  State,  however,  candidates  who  viewed  the  Con- 
stitution with  greater  favor,  were  returned,  though  it  is  said 
that  not  more  than  2,000  voters  exercised  the  suffrage 
throughout  the  entire  State.6 

3  Resolutions  of  meeting  in  the  State  House  yard,  Philadelphia,  Octo- 
ber 21-22,  1776;  cf.  Pennsylvania  Gazette,  October  23,  1776. 

3  Section  40  of  Constitution.  Also  ordinance  of  convention,  in  Minutes 
of  Convention,  p.  56. 

*  Sec.  10  of  the  Constitution;  cf.  Resolutions  of  the  meeting  in  the 
State  House  yard.  sec.  26. 

6  Ibid. 

'  "  This  Constitution  was  no  sooner  published,  than  it  was  reprobated 
by  a  great  body  of  the  people.  Some  of  the  members  of  the  convention 


DOWNFALL   OF   FRANKLIN'S   GOVERNMENT        47 

When  the  Assembly  met,  the  opponents  of  the  Constitu- 
tion were  strong  enough,  to  effect  one  thing  at  least.  By 
refusing  to  take  their  seats,  they  could  prevent  the  house  from 
organizing.  John  Dickinson,  who  led  the  Anti-Constitution- 
alists, seeing  that  there  was  no  prospect  of  amending  the 
Constitution  through  the  Assembly,  early  in  the  session  made 
the  following  proposition : 

"  On  behalf  of  myself  and  of  others  of  my  constituents,  I 
agree  that  we  will  consent  to  the  choice  of  a  Speaker,  sit  with 
the  other  members,  and  pass  such  acts  as  the  public  affairs 
may  require,  provided  that  the  other  members,  the  majority, 
will  agree  to  call  a  free  convention  for  a  full  and  fair  repre- 
sentation of  the  freemen  of  Pennsylvania,  to  meet  on  or 
before  the  -  -  day  of  January  next,  for  the  purpose  of  re- 
vising the  Constitution  framed  by  the  late  Convention,  and 
making  such  alterations  and  amendments  therein  as  shall 
by  them  be  thought  proper,"  etc.  The  proposal  having  not 
been  received  with  favor  by  the  majority  of  the  members, 


who  composed  it  were  insulted  upon  returning  to  their  respective  coun- 
ties. Unfortunately  for  the  State,  General  Howe  invaded  New  Jersey, 
and  pointed  towards  an  attack  upon  the  capital  of  Pennsylvania  about 
the  time  fixed  upon  by  the  convention  for  the  election  of  an  assembly 
to  execute  the  Constitution.  A  government  of  some  kind  became  neces- 
sary to  collect  the  force  of  the  State  to  resist  the  approaching  enemy. 
About  two  thousand  voters  only  appeared  in  favor  of  an  assembly. 
The  members  chosen  took  their  seats,  and  after  setting  aside  several 
parts  of  the  Constitution  which  they  had  previously  sworn  to  main- 
tain, they  undertook  to  execute  the  parts  of  it  which  remained.  So 
obnoxious  was  the  Constitution  to  the  best  men  in  the  State,  that  the 
Executive  Council,  after  tempting  a  number  of  them  with  the  first  of- 
fices in  the  government  to  no  purpose,  were  obliged  to  call  a  Chief 
Justice  and  an  Attorney  General  from  the  neighboring  States." — 
Pennsylvania  Packet,  Feb.  2,  1779.  "  It  was  in  vain  that  some  men  of 
more  prudence  and  foresight  in  the  convention  objected  to  many  parts 
of  the  proposed  Constitution  in  every  stage  of  its  progress.  It  was  car- 
ried as  it  now  appears,  in  heat  and  in  haste.  Necessity,  the  tyrant's 
useful  plea,  was  urged  for  carrying  it  into  immediate  execution,  with- 
out submitting  it  to  the  discussion  or  sovereign  sanction  of  the  people. 
Scarce  a  twentieth  part  of  the  people  would  countenance  the  Consti- 
tution by  giving  a  vote  under  it  at  the  first  election." — Article  in  Penn- 
sylvania Packet,  Feb.  6,  1779. 


48  THE  REFERENDUM  IN  AMERICA 

Dickinson  and  several  of  his  colleagues  withdrew  from  the 
house,  which  had  the  result  of  breaking  a  quorum. 

The  situation  was  so  grave,  however,  by  reason  of  the  ap- 
proach of  the  British  army,  that  the  Continental  Congress, 
in  the  absence  of  any  organized  authority  in  the  State, 
threatened  to  intervene  and  establish  a  provisional  govern- 
ment. The  contending  factions  therefore  agreed  to  elect  a 
speaker,  and  proceed  to  the  transaction  of  business,  though 
Dickinson  and  his  immediate  following  still  refused  to  occupy 
their  seats.  Writs  were  issued  by  the  speaker  in  February, 
1777,  for  the  election  of  members  in  their  places.  Council- 
ors and  other  officers  were  also  chosen  at  special  elections, 
and  on  March  5,  1777,  the  Council  and  the  Assembly,  having 
met  together  in  the  manner  contemplated  by  the  Constitu- 
tion, elected  the  first  President  and  Vice-President  of  the 
State,  and  they  were  inducted  into  office  with  some  cere- 
mony.7 

This  appearance  of  vigor  in  the  new  government,  however, 
did  not  have  the  effect  of  allaying  the  popular  uneasiness  and 
distrust,  and  the  agitation  for  a  new  Constitution  was  soon 
renewed.  The  Whig  Society,  of  which  Paine,  Cannon  and 
Young  were  active  members,  was  organized  to  oppose  the 
anti-constitutional  movement.  In  the  spring  of  1777,  the 
threatening  attitude  of  the  British  army  once  again  occa- 
sioned alarm  to  Congress,  and  on  April  14  it  was  resolved 
that  the  subject  was  so  important  as  to  require  Congressional 
superintendency  and  oversight.  On  April  15  a  committee 
of  Congress  to  which  the  matter  had  been  referred,  reported 
that  "  the  executive  authority  of  the  Commonwealth  of  Penn- 
sylvania is  incapable  of  any  exertion  adequate  to  the  present 
crisis  ",  which  the  Anti-Constitutionalists  at  once  took  to  be 
an  absolute  condemnation  of  the  new  government.  "  Weak- 
ness and  languor  are  apparent  in  every  part  of  the  govern- 
ment. There  is  no  regular  administration  of  justice,  whereby 

7  Thomas  Wharton,  Jr.,  councilor  for  Philadelphia  County,  was  elected 
President,  and  George  Bryan,  councilor  for  Philadelphia  city,  Vice- 
President. 


DOWNFALL  OF  FRANKLIN'S   GOVERNMENT       49 

the  enemies  of  our  country  may  be  punished  and  its  friends 
protected  ",  said  a  number  of  petitioners  who  addressed  "  the 
President  of  the  Executive  Council  and  the  Board  of  War  8 
for  the  State  of  Pennsylvania ",  on  May  6,  1777.  They 
asked  therefore  "  that  as  soon  as  the  Assembly  shall  meet,  ap- 
plication be  made  to  them  to  recommend  the  election  of  a  new 
Convention  for  the  purpose  of  altering  and  amending  the 
Constitution  ".  The  Board  of  War,  Richard  Bache,  Chair- 
man, on  May  14,  replied  to  its  petitioners  that  it  heartily  ap- 
proved of  the  proposition  as  a  "  salutary  and  necessary 
measure  ". 

The  Supreme  Executive  Council  itself  on  June  n,  ad- 
dressed the  Assembly  as  the  Board  of  War  had  done  a  few 
days  earlier.  In  this  communication,  the  councilors  de- 
clared that  "  they  are  sorry  to  find  the  present  Constitution 
of  the  State  so  dissatisfactory  to  any  of  the  well-affected  in- 
habitants thereof,  and  would  gladly  concur  in  any  suitable 
and  safe  measure  for  the  removal  of  this  uneasiness ;  that  they 
are  of  the  opinion  this  might  be  greatly  attained  by  ta- 
king the  sense  of  the  majority  of  the  electors  throughout  the 
counties  on  the  important  question  whether  a  Convention  be 
holden  at  some  proper  time  to  reconsider  the  frame  of  gov- 
ernment formed  by  the  late  Convention ;  that  to  fix  the  exact 
mode  of  obtaining  the  mind  of  the  majority  on  the  subject 
most  properly  belongs  to  their  representatives;  that  the 
Council  hope  that  if  some  suitable  mode  of  advising  and  get- 
ting the  people  at  large  to  declare  themselves,  and  if  this  were 
advised  and  published  at  this  time,  great  ease  and  relief  would 
thereby  be  given  to  some  persons  who  are  dissatisfied  as 
aforesaid ;  and  that  unanimity  in  the  common  cause  so  neces- 
sary at  this  time,  will  be  promoted  ". 9 

Even  the  Whig  Society,  which  of  course  engaged  itself  in 
an  effort  to  defeat  the  movement  for  a  new  Constitution,  was 
now  favorable  to  a  plebiscite  on  this  subject,  as  it  or  its  suc- 

8  A  State  Military  Board  appointed  by  the  Supreme  Executive  Council. 
There  was  also  a  "  Navy  Board  ". 

9  Colonial  Records,  Vol.  XI,  p.  220. 


5°  THE  REFERENDUM  IN  AMERICA 

cessor,  the  Constitutional  Society,  did  not  find  it  expedient 
to  be  at  a  later  date.10  The  Whig  Society  asked  the  Assem- 
bly if  the  worst  happened,  at  least  to  "  take  the  necessary  steps 
for  collecting  the  sense  of  the  State  previous  to  any  such 
recommendation  " — i.  e.,  a  "  recommendation  "  to  the  people 
to  elect  a  new  Convention.  The  Assembly  on  June  12  en- 
tered upon  the  immediate  consideration  of  the  project,  and 
resolved  that  it  would  "  recommend  it  to  the  inhabitants  of  the 
Commonwealth  to  give  their  sense  of  the  present  dispute  re- 
specting the  calling  of  a  Convention  ".  A  committee  was  ap- 
pointed to  devise  and  propose  a  plan  by  which  this  "  sense  " 
should  be  ascertained,  and  the  Assembly  upon  receiving  its 
report,  determined  on  June  17  to  submit  the  question  to  the 
people,  their  answer  to  be  given  directly  by  a  yea  and  nay 
vote. 

It  is  of  interest  to  note  how  this  early  plebiscite  in  Pennsyl- 
vania was  to  be  taken.  The  freemen  of  each  township, 
borough,  ward  or  other  local  district,  when  they  next  chose 
their  "  inspectors  "  for  the  election  of  members  of  the  Assem- 
bly, were  to  select  "  commissioners  ",  one  for  each  local  dis- 
trict. The  duties  of  these  "  commissioners "  were  rather 
ambiguously  defined  in  the  law  as  follows: 

"  To  go  to  the  house  or  place  of  residence  of  each  and  every 
freeman  entitled  to  vote  for  members  of  General  Assembly 
within  their  respective  townships,  boroughs,  wards  or  dis- 
tricts, or  to  take  some  other  opportunity  of  meeting  with 
them.  The  said  commissioner  shall  ask  each  and  every  of 
the  said  freemen  whether  he  desires  that  a  convention  be  now 
called,  and  the  freeman  shall  give  in  writing  on  a  scroll  or 
piece  of  paper,  his  vote  or  answer,  which  he  shall  put  into  a 
box  provided  for  that  purpose,  which  he  shall  keep  shut  and 
in  his  own  possession,  and  return  the  same  on  or  before  the 
tenth  day  of  November  to  the  sheriff  of  the  city  or  county 
to  which  he  belongs,  or  in  case  of  the  death,  sickness  or  ab- 
sence of  the  sheriff,  to  the  coroner,  who,  with  the  assistance 
of  the  said  commissioner,  shall  examine  the  said  box  or  bag, 

10  Cf.  infra,  p.   53. 


DOWNFALL   OF   FRANKLIN'S   GOVERNMENT        51 

and  cast  up  the  number  of  votes  therein  contained  on  each 
side  of  the  question,  and  the  sheriff  or  coroner  shall  deliver  to 
such  commissioner  a  certificate  of  the  said  numbers,  and 
also  return  a  true  account  thereof,  under  the  hands  and  seals 
of  the  said  sheriff  or  coroner,  and  of  the  said  commissioner, 
to  the  next  General  Assembly  at  their  first  sitting."11 

As  the  State  soon  became  the  center  for  the  military  opera- 
tions of  a  considerable  portion  of  the  British  army,  the  pleb- 
iscite could  not  be  taken,  but  with  the  evacuation  of  Phila- 
delphia by  the  enemy  in  1778,  expressions  of  dissatisfaction 
with  the  Constitution  were  immediately  renewed.  In  No- 
vember, 1778,  the  subject  was  again  brought  before  the  As- 
sembly, and  on  the  28th  day  of  that  month,  the  house  passed 
resolutions  stating  that  whereas  "  divers  petitions  "  had  been 
presented  to  former  assemblies  "  suggesting  inconveniencies 
in  the  present  Constitution  and  form  of  government ",  and 
asking  for  a  submission  of  the  question  to  the  people,  and 
whereas  resolutions  providing  for  such  a  vote  had  earlier  been 
agreed  to,  but  "  the  invasion  of  the  State  and  other  circum- 
stances "  had  prevented  it  being  carried  into  effect,  another 
attempt  would  be  made  to  get  an  expression  of  public  opinion 
in  April,  1779.  The  people  were  to  vote  by  ballot  the  slips 
of  paper  containing  the  words  "  For  a  Convention ",  or 
"  Against  a  Convention  ",  as  the  preference  of  the  voter 
might  dictate.  The  members  of  the  Convention  were  to  be 
selected  at  the  same  time,  so  that  the  people  would  not  be 
"'put  to  the  inconvenience  of  a  second  meeting",  should  a 
majority  of  the  ballots  be  unfavorable  to  the  existing  Con- 
stitution. The  Convention,  in  case  the  people  should  sanction 
it,  was  to  meet  at  Lancaster  on  June  i,  I779-12 

11  Journals  of  the  Assembly,  p.   145. 

"Journals  of  the  Assembly,  pp.  246-47.  This  resolution,  which  was 
passed  November  28,  1778,  provided,  "  That  the  people  throughout  this 
State  qualified  to  vote  for  members  of  Assembly,  do  meet  at  the  usual 
places  of  election  since  the  late  happy  revolution,  on  the  25th  day  of 
March  next,  and  choose  judges  and  inspectors  as  by  law  directed  in 
case  of  representatives.  And  the  said  judges  and  inspectors  being  so 
chosen  and  sworn  as  at  the  election  of  representatives,  shall  provide 


52  THE  REFERENDUM  IN  AMERICA 

Were  the  vote  favorable  to  a  Convention,  it  was  provided 
that  that  body  should  determine  on  nine  separate  points. 
Those  most  vitally  affecting  the  character  of  the  Constitution, 
related  to  the  division  of  governmental  powers; — whether 
the  legislature  in  the  future  should  consist  of  one  house  or, 
two ;  whether  the  executive  authority  should  be  strengthened 
and  given  a  position  more  independent  of  the  Assembly; 
whether  the  judiciary  should  continue  to  be  the  servant  of  the 
Assembly,  and  whether  the  anomaly  called  the  Council  of 
Censors  might  not  better  be  abolished.  It  was  still  in  Phila- 
delphia that  the  most  dissatisfaction  was  expressed  in  refer- 
ence to  the  Constitution.13  It  was  now,  as  at  a  later  time, 
a  favorite  mode  of  defending  the  Constitution  against 
every  attack  upon  it  to  say  that  those  who  most  desired  to 
change  it  were  "  Tories  ".  John  Dickinson,  James  Wilson 
and  Richard  Bache,  all  were  accused  of  their  Tory  inclina- 

two  boxes  for  the  city  and  each  district  of  every  county ;  and  on  the 
first  Tuesday  of  April  next  they  shall  receive  the  votes  of  the  free- 
men qualified  at  the  time  of  said  election  by  law,  to  vote  as  aforesaid, 
making  at  the  same  time  a  list  of  the  voters'  names,  and  put  into 
one  box  all  the  votes  for  and  against  a  convention,  the  voters  in  favor 
of  a  convention  writing  on  their  tickets  '  For  a  Convention  ',  and  those 
against  it  '  Against  a  Convention  ',  and  in  the  other  box  they  shall  put 
the  votes  for  the  members  of  such  convention  as  that,  if  the  majority 
of  votes  should  be  in  favor  of  a  convention,  the  minority  may  not  be 
precluded  from  a  choice  in  the  persons  who  are  to  compose  it,  or  the 
people  put  to  the  inconvenience  of  a  second  meeting ".  These  boxes 
after  the  meeting  had  adjourned  were  to  be  sealed,  and  delivered  by  the 
election  officers  to  the  sheriffs  at  the  court  houses  of  the  respective 
counties,  who  then  should  take  them  up  to  the  Assembly  where  the 
boxes  would  be  opened,  and  the  ballots  counted.  "  If  a  majority  of  votes 
shall  appear  to  be  against  a  convention,  then  no  further  proceedings 
shall  be  had,  but  if  a  majority  of  votes  shall  be  for  a  convention,  the 
Assembly  shall  then  proceed  to  open  the  boxes  containing  the  names 
of  the  members  for  the  city  and  county,  and  shall  declare  the  six 
highest  in  number  from  each  city  and  county  to  be  the  members  to  rep- 
resent the  said  city  and  county  in  convention." 

13  Cf.  Pennsylvania  Packet,  Jan.  21,  1779.  A  correspondent  replying 
to  the  assertion  that  a  majority  of  the  citizens  of  Philadelphia  were  in 
favor  of  the  Constitution,  said  that  "  nothing  could  be  farther  from  the 
truth  ",  and  added  that  "  at  every  general  election  "  held  in  this  city 
since  the  formation  of  the  present  Constitution,  Anti-Constitutional  mem- 
bers have  been  returned. 


DOWNFALL  OF  FRANKLIN'S   GOVERNMENT        53 

tions,  whenever  they  exerted  themselves  in  behalf  of  a  change 
in  the  system  of  government  in  Pennsylvania.14 

This  very  cheap  and  successful  method  of  "  campaigning  " 
was  used  with  effect  against  John  Adams  and  other  Amer- 
icans, very  loyal  and  in  the  highest  degree  useful  to  their 
countrymen,  who  could  well  afford  to  let  their  enemies  stamp 
and  fume  if  their  services  could  be  of  any  value  in  saving  the 
new  nation  from  such  a  democratic  upheaval  as  was  soon  to 
fall  to  the  lot  of  the  foolish  people  of  France.  It  was  not  the 
Tories  who  were  leading  the  movement  against  this  unright- 
eous Constitution,  but,  a  great  branch  of  the  Whig  or  Amer- 
ican party,  for  the  Tories  were  safely  enough  shut  out  from 
any  part  in  political  affairs  during  this  period.  The  Whig 
party  in  Pennsylvania  was  cloven  through  and  through  on 
the  constitutional  issue,  being  almost  equally  divided  in  num- 
bers into  the  Constitutional  and  the  Anti-Constitutional,  or 
so-called  "  Republican  "  factions,  an  alignment  which  con- 
tinued until  the  new  convention  met  in  1790,  when  the  gov- 
ernment of  the  State  was  made  to  conform  to  the  common 
American  model. 

The  Constitutionalists  conducted  such  a  campaign  through 
the  counties,  circulating  petitions  and  assembling  the  names 
of  remonstrants  against  the  plebiscite  which  had  been  set  for 
April,  1779,  that  the  Assembly  weakened  at  the  last  moment, 
although  the  resolution  authorizing  the  vote  of  the  people 
had  been  passed  unanimously  by  the  same  Assembly  in  the 
preceding  November.15 

14  Dickinson  defended  himself  in  a  public  address,  Pennsylvania 
Packet,  Dec.  31,  1782;  James  Wilson  in  Pennsylvania  Packet,  October 
17,  1780.  Cf.  Article  of  Timothy  Matlack  in  Pennsylvania  Packet, 
March  30,  1779,  for  an  attack  upon  Mr.  Bache,  at  that  time  President 
of  the  so-called  "  Republican  Society  " — an  Anti-Constitutional  Club. 

18  Familiar  methods  were  used  in  the  country  districts  to  prejudice 
the  people  against  the  convention.  Assertions  were  made,  as  they  were 
afterward  and  before,  that  it  was  an  attempt  to  establish  a  hateful 
"  House  of  Lords " ;  cf.  Address  of  Republican  Society,  signed  by 
Richard  Bache,  Chairman,  Pennsylvania  Packet,  March  25,  1779,  in 
which  he  asked :  "  Were  you  not  told  when  the  petitions  were  presented 
to  you  that  the  opposition  to  the  Constitution  arose  and  was  supported 


54  THE  REFERENDUM  IN  AMERICA 

The  members  of  the  Assembly,  it  was  said,  had  taken  the 
oath  to  support  the  Constitution,  as  it  was  prescribed  that 
they  should  do  in  that  instrument,  and  yet  they  had  inconsist- 
ently voted  for  a  convention  to  change  it.16  If  change  were 
needed,  there  was  a  method  by  which  this  could  be  effected, — 
namely,  through  the  Council  of  Censors.  A  convention 
called  by  any  other  authority  would  be  extra-constitutional.17 
A  single  remonstrance  containing  the  names  of  3743  inhabi- 
tants of  Lancaster  County,  was  received  in  the  Assembly,18 
and  altogether  signatures  to  the  number  of  16,000,  at  least, 
seem  to  have  been  secured,19  enough  in  any  case  to  induce 
the  house  on  February  27,  1779,  only  a  few  weeks  before  the 
date  fixed  for  the  plebiscite  to  rescind  its  earlier  action  by  a 
vote  of  47  yeas  to  7  nays.20  "  Whereas  a  very  considerable 
number  of  the  inhabitants  of  this  Commonwealth  are  much 
dissatisfied  with  the  said  resolution,"  the  Assembly  declared 
in  its  repealer  it  had  been  induced  to  change  its  order  for  a 
popular  vote,  and  thus  the  issue  was  postponed  again,  though 
the  discussion  was  happily  allowed  to  subside  in  some  degree 
until  the  Council  of  Censors  held  its  first  regular  meeting  in 
1783-84,  when  the  argument  was  revived  with  all  its  orig- 
inal and  indeed  an  increased  asperity. 

It  was  the  time  of  the  fantastic  and  the  elegant  in  political 
philosophy,  when  the  facts  of  life  and  the  experience  of  the 
human  race  must  take  a  place  subordinate  to  style  of  expres- 
sion and  flowing  language,  which  were  often  used  to  disguise 

only  by  a  junta  of  gentlemen  in  Philadelphia,  who  wished  to  trample 
upon  the  farmers  and  mechanics,  to  establish  a  wicked  aristocracy,  and 
introduce  a  House  of  Lords,  hoping  to  become  members  of  it  ?  " 

16  Pennsylvania  Packet,  Feb.  4,  1779. 

"Ibid.,  March  2,  1779.  18 Ibid. 

18  Address  of  Richard  Bache,  Pennsylvania  Packet,  March  25,  1779. 
Here  it  is  admitted  that  16,000  signatures  were  received,  though  it  was 
said  that  these  represented  only  a  third  or  fourth  part  of  the  inhab- 
itants of  the  State,  to  which  there  was  the  pleasant  retort  that  the  other 
two-thirds  or  three-fourths  were  Tories.  Cf.  Address  to  the  people  by 
the  minority  members  of  the  Council  of  Censors,  Pennsylvania  Packet, 
Jan.  27,  1784. 

20  Journals  of  the  'Assembly,  pp.  323-324. 


DOWNFALL  OF  FRANKLIN'S  GOVERNMENT       55 

pleasant  idealistic  illusions.  The  Roman  Censors  were  to 
meet  every  seven  years,  a  "  romantic  "  period,  as  a  contem- 
porary newspaper  writer  observed.21  The  literary  age  which 
produced  Rousseau,  Diderot,  d'Alembert,  Condorcet  and  even 
Franklin  with  all  his  rustic  crudity  was  an  age  of  elegance. 
The  Pennsylvania  Constitution  was  a  product  of  this  literary 
apriorism,  and  after  tasting  of  the  viands  we  must  feel  some- 
what nauseated  as  Adams  did  when  he  had  attended  this 
strange  feast  in  France.  "  I  am  no  enemy  of  elegance  ",  Mr. 
Adams  explained,  "  but  I  say  no  man  has  a  right  to  think  of 
elegance  till  he  has  secured  substance,  nor  then  to  seek  more 
of  it  than  he  can  afford."22 

In  1783  when  the  date  had  arrived  for  each  county  to 
return  two  members  to  the  Council  of  Censors,  whose  duty  it 
would  be  to  ascertain  whether  or  not  the  Constitution  had 
been  "  preserved  inviolate  in  every  part ",  the  two  parties 
in  Pennsylvania  put  forth  strenuous  efforts.  The  Anti-Con- 
stitutionalists seemed  at  first  to  be  triumphant.  It  was  al- 
leged, however,  that  in  Philadelphia,  soldiers  from  other 
States,  quartered  in  the  city,  had  been  allowed  to  vote ;  that 
they  were  "  assembled  together  by  beat  of  drum  on  the  day  of 
the  election,  and  marched  with  officers  at  their  head  toward 
the  State  House" ;  that  the  judges  and  inspectors  were  "  over- 
awed " ;  that  "  the  ofBcers  of  the  army  attended  at  the  win- 
dows with  their  swords  in  their  hands,  and  the  sergeants 
were  employed  in  distributing  tickets  ",  etc.23  By  a  vote  of 
fourteen  to  seven,  however,  the  Council  of  Censors  deter- 
mined that  the  election  of  two  censors  for  the  city  of  Phila- 
delphia was  "  agreeable  to  the  laws  of  this  State  ",  and  by 
fourteen  to  eight  that  there  was  "  no  legal  cause  for  setting 
aside  the  said  election  ". 

11  This  term  was  doubtless  suggested  by  the  septennial  parliamentary 
period  in  England,  and  seems  to  have  been  an  idea,  therefore,  of  Brit- 
ish rather  than  French  lineage. 

"  Works,  Vol.  I,  p.  433- 

28  Petition  to  the  Council  of  Censors  by  certain  Constitutionalists  in 
Philadelphia,  Pennsylvania  Packet,  January  10,  1784.  Also  Journal  of 
the  Council  of  Censors,  p.  22. 


56  THE  REFERENDUM  IN  AMERICA 

Upon  the  announcement  of  this  decision  the  eight  mem- 
bers in  the  minority  issued  a  long  manifesto  or  protest, 
which  was  entered  on  the  minutes  of  the  Council,24  the  Presi- 
dent of  which  was  F.  A.  Muhlenberg,  afterward  the  first 
Speaker  of  the  House  of  Representatives  of  the  United 
States.  The  censors  instead  of  setting  themselves  to  the  task 
of  determining  whether  or  not  the  Constitution  had  been 
"  preserved  inviolate  ",  and  the  various  departments  of  the 
government  had  kept  themselves  within  their  rightful  limits, 
at  once  took  measures  looking  to  a  call  for  a  new  convention. 
The  Council  could  issue  such  a  call,  of  course,  on  a  vote  of  its 
members.  The  Constitutionalists  had  been  the  loudest  in 
their  appeals  to  the  Constitution,  as  a  means  of  accomplish- 
ing its  own  reform  in  1778  and  1779,  but  they  now  resisted 
the  movement  with  all  the  force  they  could  command.25  The 
report  of  the  "  Committee  on  the  Defects  and  Alterations  of 
the  Constitution  "26  was  a  masterly  statement  of  the  various 
arguments  against  the  Pennsylvania  Constitution,  and  it  de- 
serves a  high  place  among  the  archives  of  government  on  this 
continent. 

Respecting  the  single  house  of  assembly,  the  report  de- 
clared that  the  Constitution  in  this  detail  was  "  materially 
defective  ".  A  body  of  men  upon  whose  action  there  was 
no  veto,  was  a  source  of  danger  in  the  state ;  first,  because  if 
it  should  happen  that  a  prevailing  faction  in  that  body  were 
"  desirous  of  enacting  unjust  and  tyrannical  laws,  there  would 
be  no  check  upon  their  proceedings  " ;  and  second,  because 
an  "  uncontrolled  power  of  legislation  will  always  enable  the 
body  possessing  it  to  usurp  both  the  judicial  and  the  executive 
authority,  in  which  case  no  remedy  would  remain  to  the 
people  but  by  a  revolution/' 

The  division  of  the  executive  authority  among  so  many 
persons;  namely,  the  various  members  of  the  Executive 
Council,  who  with  the  formation  of  new  counties  had  in- 

24  Journal  of  the  Council  of  Censors,  p.  26. 

25  Cf.  an  address  to  the  people  in  Pennsylvania  Packet,  January  27, 
1784.  2e  Packet,  Jan.  24,  1784;  Journal  of  Council,  pp.  53  et  seq. 


DOWNFALL   OF  FRANKLIN'S   GOVERNMENT        57 

creased  until  they  now  numbered  thirteen,  was  also  regarded 
as  a  defect.  Some  of  the  principal  reasons  for  their  opinion 
were  developed  in  the  committee's  report,  and  it  was  alleged 
that  the  constant  sitting  of  a  Council  was  expensive  and  bur- 
densome ;  that  a  numerous  body  of  men  does  not  possess  the 
decision  necessary  for  action  in  sudden  emergencies;  that  if 
the  Council  be  "  weak  or  wicked  "  in  its  action,  "  there  is  no 
individual  so  accountable  to  the  public  as  every  man  ought  to 
be  in  such  cases  " ;  that  since  the  President  is  chosen  by  the 
joint  ballot  of  the  Council  and  Assembly  "  if  a  prevailing 
faction  should  ever  happen  in  the  Assembly,  so  as  to  lead  a 
considerable  majority,  the  President  thus  chosen  will  have 
nothing  to  fear  from  the  legislature,  and  by  influencing  the 
Council,  would  possess  exorbitant  authority  without  being 
properly  accountable  for  the  exercise  of  it ". 

In  respect  of  the  judiciary,  it  was  said  that  this  needed  re- 
form also,  in  the  sense  that  now  the  terms  were  too  short,  the 
Supreme  Court  judges  being  commissioned  for  seven  years 
only,  and  being  removable  at  any  time  by  the  Assembly  for 
"  misbehavior  ".  This  was  looked  upon  as  a  grave  mistake 
in  political  policy,  for  "  if  the  Assembly  should  pass  an  un- 
constitutional law,  and  the  judges  have  virtue  enough  to  re- 
fuse to  obey  it,  the  same  Assembly  could  instantly  remove 
them  ".  The  rotation  of  offices  of  inferior  kinds,  as  provided 
for  in  the  Constitution,  the  committee  conceived  to  be  an 
error,  and  this  point  was  argued  in  a  manner  to  do  great 
credit  to  our  ablest  advocates  of  "  civil  service  reform  "  at  a 
later  day. 

The  committee  proposed  that  there  should  henceforth  be  a 
legislature  of  two  houses,  to  be  called  the  "  Legislative 
Council  ",  and  the  "  Assembly  ".  These  together  should  be 
denominated  "  The  General  Assembly  of  Pennsylvania ". 
The  Council  was  alluded  to  as  the  "first  branch",  in  order 
to  avoid  the  distinctions  of  "  upper  "  and  "  lower  ",  which 
many  considered  so  objectionable.  Both  houses  were  to  be 
elected  by  the  people,  though  on  separate  apportionments,  the 
units  of  population  in  the  case  of  the  Council  being  larger 


58  THE  REFERENDUM  IN  AMERICA 

than  for  the  Assembly.  The  assemblymen  were  to  be  elected 
annually ;  the  councilors  for  periods  of  three  years,  one-third 
returning  every  year,  in  the  general  manner,  later  made  so 
familiar  to  us  in  the  Federal  system,  in  respect  of  the  United 
States  Senate,  it  being  as  well  the  usual  method  employed 
in  nearly  all  the  State  governments. 

As  for  the  executive  power,  there  was  to  be  a  Governor 
annually  chosen  by  the  people.  Each  house,  of  course,  was 
to  have  a  negative  on  the  measures  of  the  other,  and  the 
Governor  would  possess  a  veto  in  reference  to  the  work  of 
both.  The  Governor  was  to  appoint  the  judges,  who  were  to 
hold  office  indefinitely,  during  "  good  behavior ",  a  point, 
however,  which  the  Assembly  was  no  longer  to  determine 
upon  its  own  responsibility.  The  Council  of  Censors,  which 
was  the  object  of  much  ridicule,  was  to  be  abolished. 

This  report  was  adopted  by  the  Council  of  Censors,  by  a 
vote  of  twelve  to  nine,  which  was  less  than  the  constitutional 
two- thirds  majority  requisite  to  call  a  new  Convention, 
wherefore  the  Council  shortly  adjourned,  or  "  suspended  its 
deliberations  "  to  use  its  own  term  in  this  connection,  in  order 
to  allow  the  question  to  be  debated  well  by  the  people.  The 
nine  members  who  had  dissented  from  the  report  issued  a 
statement  in  defence  of  their  course.  In  this  peculiar  docu- 
ment they  said :  "  The  alterations  proposed  will  introduce 
a  form  of  government  much  more  expensive,  burdensome 
and  complicated; — but  what  we  dread  more  than  expense 
and  delay,  they  tend  to  introduce  among  the  citizens,  new  and 
aristocratic  ranks,  with  a  chief  magistrate  at  their  head, 
vested  with  powers  exceeding  those  which  fall  to  the  ordinary 
lot  of  kings.  We  are  sufficiently  assured  that  the  good  people 
of  Pennsylvania  most  ardently  love  equal  liberty,  and  that 
they  abhor  all  attempts  to  list  one  class  of  citizens  above  the 
heads  of  the  rest,  and  much  more  the  elevating  any  one  citizen 
to  the  throne  of  royalty.  And  herein  we  are  confident  we 
speak  not  only  the  language  of  our  constituents,  but  that  we 
proclaim  also  the  voice  of  God  and  nature."  27 

"Journal  of  Council,  p.  75. 


DOWNFALL  OF  FRANKLIN'S   GOVERNMENT        59 

The  majority,  under  Mr.  Muhlenberg's  leadership,  on  their 
side,  issued  an  address  to  the  people  of  Pennsylvania,  which 
was  adopted  in  the  Council  by  a  vote  of  twelve  to  ten.  In  this 
address  it  was  stated  that  the  minority  of  the  Council  did  not 
represent  one-third  of  the  people  in  the  State.  Each  county 
having  equal  representation,  that  is,  two  members,  some  of 
the  least  populous  parts  of  the  State  acquired  an  undue 
strength.  The  address  was  a  careful  and  rational  statement 
of  the  case  from  the  point  of  view  of  well  informed  and  con- 
servative men,  and  the  people  were  asked  seriously  to  con- 
sider the  question  of  calling  a  new  convention,  making  known 
to  the  Council  their  sentiments  regarding  the  proposition 
before  it  should  reassemble  in  a  few  months.28 

The  minority  in  the  Council  hereupon  published  a  counter 
memorial  to  the  people,  which  for  rough  democratic  convic- 
tion, has  perhaps  never  been  excelled  by  any  political  docu- 
ment ever  penned  in  this  country.  These  fearless  friends 
of  popular  rights  appealed  to  the  people  in  the  following 
terms : 29  "  Let  no  artful  addresses  of  those  aspiring  despots 
who  wish  to  establish  and  fill  an  upper  house  of  lords  amongst 
you,  that  they  may  thereby  more  effectually  teach  you  sub- 
mission to  your  betters,  prevail  with  you  to  give  up  a  Consti- 
tution which  is  the  admiration  of  Europe,  which  attracts  the 
attention  of  every  friend  of  equal  liberty  in  the  world,  and 
which  will  continue  to  brighten  and  grow  illustrious  as  long 
as  the  lamp  of  science  shall  irradiate  the  Western  world,  and 
the  genius  of  liberty  protect  its  hardy  sons  from  the  en- 
croachments of  arbitrary  power."  The  object  which  these 
"  despots  "  desired  to  attain,  our  democrats  explained,  was 
the  establishment  of  "  an  upper  house  to  accommodate  the 
better  sort  of  people,  and  to  vest  them  with  full  power  to  pre- 
vent any  law  from  passing  which  a  number  of  honest  farmers 
from  the  country  may  judge  to  be  salutary  and  beneficial  to 
the  State  ".  And  not  only  was  the  Senate  a  dangerous  anti- 
popular  device,  but  "  your  Governor  or  King  (for  it  matters 

28  Journal  of  Council,  p.   77. 

29  Pennsylvania  Packet,  Jan.   27,    1784. 


60  THE  REFERENDUM  IN  AMERICA 

not  by  what  name  you  may  call  him)  "  would  have  "  absolute 
power  to  put  a  negative  on  any  bill  which  both  houses  may 
agree  to  enact ",  whereby  "  you  may  finally  despair  of  ever 
having  it  in  your  power,  without  bloodshed,  to  counteract  an 
ambitious  tyrant  at  the  head  of  your  government ".  The 
public,  too,  was  gravely  assured  that  the  Governor  would 
have  "  greater  legislative  authority  than  the  Kings  of  Great 
Britain  ",  while  there  would  be  established  in  the  State  an 
odious  "  aristocratic  nobility  ".30 

Petitions  and  remonstrances  were  circulated  assiduously  by 
the  two  parties,  and  so  hotly  was  the  campaign  prosecuted, 
that  later  in  the  year  when  the  censors  met  again,  the  Con- 
stitutionalists had  got  control  of  the  Council.  Some  vacan- 
cies which  had  occurred  in  the  membership,  had  been  filled. 
A  few  members  who  had  earlier  been  in  favor  of  a  conven- 
tion, were  now  against  it,  and  on  September  16,  1784,  it  was 
resolved  by  a  vote  of  fourteen  to  ten  31  that  "  there  does  not 
appear  to  this  Council  an  absolute  necessity  to  call  a  con- 
vention to  alter,  explain  or  amend  the  Constitution  ",  and  in 
an  address  to  the  people,  on  September  24,  1784,  the  censors 
announced  that  this  action  had  been  taken  because  of  the 
great  number  of  remonstrances  which  they  had  received.32 
In  the  election  of  members  of  the  Assembly  which  followed, 
the  Constitutionalists  won  a  signal  victory,  securing  a  major- 
ity of  twenty  in  the  house,33  which  took  occasion  soon  after 
it  met,  to  express  its  firm  attachment  to  the  Constitution, 
"  that  great  bulwark  of  equal  liberty  ",34 

Franklin,  who  for  nine  years  had  been  encouraging  the 

80  Cf.  Pennsylvania  Packet,  Feb.  12,  1784. 

81  Journal  of  Council,  p.  163.  **  Journal,  p.   177. 

M  In  this  campaign  the  constitutional  issue  was  again  confused  with 
the  question  of  loyalty  to  the  general  American  cause.  An  attempt  had 
been  made  to  modify  the  so-called  "  Test  Laws ",  by  which  many 
Quakers  and  others  suspected  of  Tory  affiliations,  were  excluded  from 
a  part  in  the  State  government.  As  the  Anti-Constitutionalists  had  been 
identified  with  the  movement  to  liberalize  these  laws,  the  radicals  were 
the  better  able  to  conduct  a  successful  campaign  in  the  autumn  of  1784. 

84  Pennsylvania  Packet,  Dec.  27,  1784. 


DOWNFALL   OF  FRANKLIN'S   GOVERNMENT        61 

Pennsylvania  Constitutionalists  from  the  European  shore,85 
arrived  in  Philadelphia  again  in  September,  1785.  He  was 
accorded  a  generous  welcome.  Among  other  marks  of  at- 
tention, he  was  presented  with  an  address  from  the  Consti- 
tutional Society.  A  committee  of  fifteen  members  of  this 
organization  appeared  before  him,  and  in  their  address  they 
said :  "  It  would  be  endless  to  enumerate  the  great  variety  of 
instances  in  which  you  have  benefited  the  State  of  Penn- 
sylvania in  former  times  and  of  late; — before  the  late  glori- 
ous Revolution,  and  since.  We  cannot,  however,  omit  to 
express  the  high  veneration  with  which  w.e  view  you  as  the 
father  of  our  free  and  excellent  Constitution.  In  this  great 
work  we  persuade  ourselves  that  you,  in  conjunction  with  the 
other  patriots  of  the  Convention,  over  which  you  presided, 
have  erected  a  stronghold  to  the  sacred  cause  of  liberty, 
which  will  long  continue  as  it  has  hitherto  done,  to  resist  the 
assaults  of  all  its  enemies,  and  if  anything  of  human  con- 
trivance could  attain  to  immortality,  we  would  fondly  flatter 
ourselves  that  it  might  remain  forever."  8e  To  this  little  sect 
of  enthusiasts  who  clung  to  their  doctrines  with  the  faith 
that  belongs  to  a  religion,  Franklin  made  a  characteristic 
response :  "  Your  friendly  congratulations  on  my  safe  return 
to  our  country,  are  extremely  obliging.  In  the  services  you 
are  pleased  so  kindly  to  remember  I  had  great  and  able  assist- 
ance from  others.  My  principal  merit,  if  I  may  claim  any  in 
public  affairs,  is  that  of  having  been  always  ready  and  willing 
to  receive  and  follow  good  advice.  I  think  myself  happy  in 
returning  to  live  under  the  free  Constitution  of  this  Common- 
wealth, and  hope  with  you  that  we  and  our  posterity  may 
long  enjoy  it."  3T 

Elections  for  the  Executive  Council  and  Assembly  were 

85  Franklin  wrote  to  a  friend  in  Philadelphia  under  date  of  March  19, 
1780:  "The  disputes  about  the  Constitution  seem  to  have  subsided.  It 
is  much  admired  here  and  all  over  Europe,  and  will  draw  many  families 
of  fortune  to  settle  under  it,  as  soon  as  there  is  peace." — Pennsylvania 
Packet,  Jan.  27,  1784. 

"Pennsylvania  Packet,  Sept.  19,  1785. 

M  Ibid.,  Sept.  19,  1785. 


62  THE  REFERENDUM  IN  AMERICA 

again  pending,  and  the  Constitutional  Society  at  once  made 
Dr.  Franklin  its  candidate  for  the  Council,  to  represent 
Philadelphia  city,  to  which  office  he  was  elected.  When 
the  Assembly  and  Council  met  to  choose  a  President  for  the 
State  for  the  ensuing  year,  Franklin,  as  it  was  planned  that 
he  should  be, — when  he  was  placed  in  the  Council, — was 
elevated  to  this  position.  The  proclamation  of  his  election, 
we  are  told,  was  made  at  the  Court  House  "  amidst  a  great 
concourse  of  people,  who  expressed  their  satisfaction  by  re- 
peated shouts  ",38  Both  parties  united  in  doing  him  this 
honor,  and  his  election  appears  to  have  been  unanimous,  ex- 
cept for  his  own  vote,  a  circumstance  which  afforded  him 
much  satisfaction,  as  he  mentioned  the  fact  in  his  correspond- 
ence with  the  Duke  de  La  Rochefoucauld,  and  with  his  other 
friends  in  France.39  In  the  same  way  he  was  re-elected  to  the 
office  in  1786,  and  in  1787,  when,  upon  completing  his  third 
year,  he,  by  the  terms  of  the  Constitution,  could  serve  no 
longer,  and  retired  to  private  life,  being  congratulated  by  his 
French  friends  for  the  fortitude  he  had  shown  at  his  great 
age,  in  taking  up  the  reins  of  government  in  a  turbulent 
State.40 

With  the  establishment  of  the  Federal  Constitution,  pub- 
lic attention  was  directed  to  its  form,  which  followed  Adams' 
English  type,  and  was  so  far  out  of  sympathy  with  the  prin- 
ciples which  were  contended  for  with  such  zeal  in 
Pennsylvania  and  France.  The  conviction  deepened  in 
Pennsylvania  that  Franklin's  Constitution  must  be  changed. 
The  Constitutionalists,  consistent  to  the  end,  opposed  the 
adoption  of  the  Federal  Constitution  because  of  its  aris- 
tocratic character.  They  were  not  particularists  as  were  the 
"  States  rights  "  men  who  opposed  the  Constitution  of  the 
United  States,  on  the  ground  that  the  federation  would  be  so 
much  stronger  than  the  individual  members  which  composed  it. 

88  Packet,   Oct.    31,    1785. 

59  Cf.  Temple  Franklin's  Collection,  Vol.  II,  p.  97. 
40  Cf.   Letter   of  the   Duke   de   La   Rochefoucauld,    Sparks'   Works  of 
Franklin,  Vol.  X,  p.  247. 


DOWNFALL   OF   FRANKLIN'S   GOVERNMENT        63 

They  were  social  theorists  who  contended  that  society  would 
suffer ;  that  men  would  be  ground  under  a  weight  of  complex 
governmental  machinery,  and  that  classes  would  be  formed, 
undoing  all  the  good  which  had  been  gained  by  a  return  to 
Rousseau's  state  of  nature.  The  Assembly  of  Pennsylvania, 
in  1787,  had  voted  to  authorize  an  election  for  members  of 
a  State  Convention  to  ratify  the  Federal  Constitution.  About 
a  score  of  the  Pennsylvania  Constitutionalists  opposed  this 
movement  with  a  pertinacity  worthy  of  some  useful  cause. 
They  absented  themselves  from  the  Assembly,  in  order  to 
break  a  quorum,  and  thus  prevent  the  transaction  of  public 
business.  They  complained  that  two  of  their  body  "  were 
seized  by  a  number  of  citizens  of  Philadelphia,  who  had  col- 
lected together  for  that  purpose,  their  lodgings  were  violently 
broken  open,  their  clothes  torn,  and  after  much  abuse  and  in- 
sult they  were  forcibly  dragged  through  the  streets  of  Phila- 
delphia to  the  State  House,  and  there  detained  by  force  " ; 
that  "  in  the  presence  of  the  majority  "  they  were  treated 
with  the  most  insulting  language  [by  the  crowd  in  the  gal- 
lery] while  the  house  so  formed  proceeded  to  finish  their 
resolutions  ".41 

These  martyrs  to  the  liberal  cause  now  issued  an  "  Address 
to  the  People  "  after  the  manner  of  the  time,  in  which  they 
explained  how  great  was  their  opposition  to  a  Constitution, 
such  as  that  one  was  which  a  State  Convention  would  soon 
be  called  together  to  ratify, — with  its  two  houses,  including 
its  aristocratic  Senate,  the  Federal  Judiciary  and  other 
features  so  hostile  to  the  spirit  of  true  democracy.42  Such 
proceedings,  it  may  be  noted,  are  not  very  unlike  many 
which  were  to  ensue  in  France  during  the  period  when  gov- 
ernment was  concentrated  in  a  single  house  of  legislature  in 
that  country. 

The  Constitutional  party  in  Pennsylvania,  when  the  Fed- 

a  Pennsylvania  Packet,  Oct.  4,  1787.  Cf.  Minutes  of  the  Eleventh 
General  Assembly  of  Pennsylvania,  p.  244. 

"Pennsylvania  Packet,  Oct.  4,  1787.  Cf.  Address  of  the  dissenters  in 
the  Convention,  Ibid.,  Dec.  18,  1787. 


64  THE  REFERENDUM  IN  AMERICA 

eral  Constitution  had  been  adopted,  found  itself  a  small 
protesting  minority,  not  in  one  State,  but  in  thirteen, — in  a 
whole  nation.  The  battle  had  now  been  won.  The  English 
Constitution,  fitting  in  as  it  did  with  the  traditions,  the 
character,  the  empirical  details  of  the  whole  American  civ- 
ilization, had  triumphed  at  last.  The  Constitution  of  Eng- 
land, of  Montesquieu,  of  John  Adams,  of  Massachusetts, 
Virginia,  New  York  and  Maryland,  and  nearly  all  the  Amer- 
ican States,  had  become  the  Constitution  of  the  nation,  and 
Pennsylvania  must  now  leave  her  isolated  place,  and  join 
her  sister  States,  conforming  to  the  general  model  which 
Ross  and  Clymer,  and  McKean  and  Wilson,  and  Dickinson 
and  Muhlenberg,  the  loyal  ten  in  the  Council  of  Censors  of 
1784,  and  many  another  friend  of  the  Commonwealth  had 
striven  for,  against  such  singular  and  mighty  odds.43 

What  remained  was  but  a  slight  detail, — a  resolution  of 
the  Assembly,  an  election  of  delegates,  a  convention.  On 
March  26,  1789,  by  a  vote  of  forty-one  to  sixteen,  resolu- 
tions were  passed  by  the  Assembly  recalling  the  fact  that 
the  people  had  the  inherent  right  to  alter  their  governments, 
choosing  their  own  method,  wherefore  the  people  of  the 
counties  were  recommended  to  elect  members  to  a  convention 
equal  to  the  number  of  members  returned  to  the  Assembly.44 
The  Executive  Council  was  now  a  great  inconvenience.  With 
the  addition  of  counties,  it  had  come  to  have  a  membership 
of  nineteen.  It  was  spoken  of  as  "  an  absurdity  of  the  most 
glaring  kind ",  while  its  chief  object  was  said  to  be  "  to 
shelter  the  most  active  and  mischievous  characters  from  that 
responsibility  which  they  owe  to  the  people,  and  prevent 
them  from  being  individually  obnoxious  to  legal  punishments 

48 "  By  this  event  [the  adoption  of  the  Constitution  of  the  United 
States]  the  Constitutional  party  of  Pennsylvania  was  laid  at  the  feet 
of  the  Republicans,  who,  now  triumphant  under  the  appellation  Federal- 
ists, overwhelmed  their  adversaries  with  the  short-lived  odium  of  Anti- 
Federalism." — Graydon,  Memoirs,  p.  342. 

4*  Cf .  Pennsylvania  Packet,  March  23,  1789,  for  the  text  of  an  address 
to  the  people,  which  was  introduced  in  the  Assembly,  buc  was  not 
adopted.  Also  Ibid.,  March  24,  1789. 


DOWNFALL   OF   FRANKLIN'S   GOVERNMENT        65 

for  any  reprehensible  proceedings  ",43  The  dissentient 
members  of  the  Assembly,  who  still  clung  faithfully  to  the 
Constitution,  filed  the  reasons  for  their  opposition  to  the 
course  of  the  majority.48  They  alleged  again  that  the  legis- 
lature w.as  exceeding  its  authority  when  it  issued  a  call  for 
a  convention,  that  the  Council  of  Censors  would  soon  meet 
once  more,  when  a  change  might  be  made,  if  it  were  ad- 
judged to  be  necessary,  through  constitutional  channels.  This 
was  described  as  the  fourth  attempt  of  the  "  aristocratic 
party  to  betray  you  into  a  voluntary  surrender  of  your  lib- 
erties ",  by  the  destruction  of  "  that  free  and  equal  Constitu- 
tion, which  an  overborne  minority  in  your  Assembly  is  no 
longer  able  to  preserve  ",47  Petitions  were  again  circulated 
for  the  signatures  of  the  Constitutionalists,  but  when  the 
Assembly  reconvened  in  the  autumn,  a  resolution  was  passed 
by  a  vote  of  thirty-nine  to  seventeen  finally  sanctioning  the 
convention,  which  was  called  to  meet  in  Philadelphia,  Novem- 
ber 4,  I789,48  and  this  was  the  Constitution  of  1 776*5  last 
death  throe. 

Once  the  convention  had  met,  there  was  not  for  a  moment 
a  question  as  to  the  fate  of  the  single  house,  the  weak  and 
divided  executive,  the  subservient  judiciary,  and  the  Council 
of  Censors.  They  were  consigned  to  the  constitutional  lum- 
ber-room, from  which  they  are  not  likely  soon  again  to  be 
brought  forth. 

45  Pennsylvania  Packet,  March  24,  1789. 

48  Ibid.,  April  i,  1789.  4T  Ibid. 

48  The  resolution  declared,  "  that  having  taken  effectual  measures  for 
satisfying  themselves  of  the  sense  of  the  good  people  of  the  Common- 
wealth thereon,  they  are  well  assured  from  the  petitions  referred  to 
them,  from  inquiries  made,  and  from  information  given  by  the  sev- 
eral members,  that  a  large  majority  of  the  citizens  of  this  State  ",  etc., 
desire  a  convention.  The  petitions  were  supplemented  by  the  observa- 
tions of  members  of  the  Assembly,  who,  during  the  recess,  had  "  mixed 
with  their  constituents  ",  thus  having  an  opportunity  to  judge  well  of 
the  state  of  public  sentiment  upon  this  subject.  Furthermore,  the 
members  in  their  capacity  as  the  people's  representatives,  combined  with 
these  considerations  "  a  conviction  "  of  their  own,  independently  arrived 
at  "  that  the  measure  is  in  itself  right  and  necessary  ". 


65  THE  REFERENDUM  IN  AMERICA 

In  passing,  it  is  difficult  not  to  stop  a  moment  to  ask  and 
wonder  whether  or  not  such  a  struggle  for  the  system  of 
checks  and  balances,  and  the  division  of  the  executive,  legis- 
lative and  judicial  functions  of  a  government  really  brought 
with  it  its  true  rewards.  With  the  recent  development  of 
cabinet  government  beginning  as  it  did  in  England,  and 
spreading  until  it  now  girdles  the  globe,  we  cannot  but  inquire 
whether  the  battle  which  Adams  fought  was  worth  the  right- 
ing. It  seems  clear  to  us  now  that  we,  catching  the  sub- 
stance, unformed  and  plastic,  of  the  English  Constitution, 
as  we  found  it  at  the  end  of  the  eighteenth  century,  fixed  it 
rigidly  in  our  written  instruments  of  government  until  we 
are  to-day  in  a  position  isolated  from  all  the  world.  Our 
President  and  our  Governors,  are  like  King  George  III,  with 
their  personal  cabinets.  Our  legislatures  are  the  legislatures 
of  England  a  hundred  years  ago.49  We  with  our  written 
constitutions  have  been  standing  still,  while  England  has 
gone  forward  developing  her  system  of  responsible  cabinet 
government,  which  is  the  subject  of  so  much  admiration 
wherever  British  political  institutions  are  understood  and 
appreciated. 

It  would  be  difficult  though,  it  seems  to  me,  to  overestimate 
the  service  which  Adams,  Hamilton  and  the  fathers  of  the 
American  constitutional  system  performed  in  saving  us  from 
unchecked  popular  rule,  by  leading  the  people  away  from 
the  consequences  of  such  teachings  as  Rousseau's,  and  those 
which  the  whole  French  race  soon  went  in  pursuit  of,  head- 
long to  their  ruin.  The  results  here  could  not  have  been  the 
same,  for  the  conditions  were  so  different.  They,  however, 
would  have  been  absolutely  blighting,  anarchic  and  bad.  We 
had  declared  that  all  men  were  free  and  equal,  but  we  did  not 
act  fully  up  to  our  expressed  convictions.  The  people  did 
not  legislate;  they  still  delegated  this  power  to  their  repre- 

49  Cf.  C.  Ellis  Stevens,  Sources  of  the  Constitution  of  the  United 
States,  New  York,  1894,  pp.  148  et  seq.;  Bryce,  American  Common- 
wealth, ad  Edition,  Vol.  I,  pp.  34  et  seq. ;  Lecky,  Democracy  and  Liberty, 
Vol.  I,  p.  }. 


DOWNFALL   OF   FRANKLIN'S   GOVERNMENT        67 

sentatives,  who,  even  in  Pennsylvania,  were  to  be  "  persons 
most  noted  for  wisdom  and  virtue  ".50 

We  did  not,  except  in  a  few  instances,  as  notably  in  Penn- 
sylvania, commit  our  political  fortunes  to  a  single  body  of 
deputies,  as  they  soon  did  in  France ;  we  retained  the  English 
system  of  checks,  balances,  vetoes  and  negatives  born  not  of 
a  belief  that  all  men  were  equally  capable  as  social  and  polit- 
ical beings,  but  of  one  quite  different,  that  they  were  unequal 
indeed,  many  being  capricious,  passionate,  hasty,  irrational, 
ambitious,  egoistic, —  masses  of  men  often  exhibiting  these 
symptoms  after  a  manner  that  segregated  individuals  do  not. 
It  was  John  Adams'  glory  that  he  at  the  beginning  of  the 
constitutional  contest  in  America,  when  the  royal  and  pro- 
prietary governments  had  not  yet  been  overthrown,  under- 
stood all  this,  and  spoke  out  in  fearless  tones  against  the 
dangers  which  lurked  in  the  rule  of  the  multitude.  His 
biographer,  Mr.  Charles  Francis  Adams,  has  justly  said: 
"'  Nobody  has  done  so  much  to  prove  the  fatal  effect  of  vest- 
ing power  in  great  masses  in  any  single  agency.  No  one  has 
shown  so  clearly  the  necessity  of  enlisting  the  aid  of  the 
various  classes  of  society  to  the  support  of  a  common  cause, 
by  giving  to  each  of  them  a  legitimate  field  of  exertion."  51 
For  the  service  that  it  was  to  us  in  the  early  days  of  our 
experiments  with  independent  government  in  America,  and 
for  what  we  still  confidently  expect  of  it,  we  must  cherish  the 
system  as  a  very  noble  inheritance.  Not  until  we  are  con- 
vinced that  the  evils  which  have  developed  in  our  political 
life,  and  which  are  putting  the  virtue  of  our  civil  institu- 
tions to  so  sore  a  test,  are  induced  by  the  system  rather  than 
by  the  inherent  shortcomings  of  men  in  democracies,  should 
we  be  willing  to  turn  from  the  course  which  history  and  ex- 
perience have  marked  out  for  us.  To  inject  into  our  heritage 
to-day,  principles  and  political  forms  which  trace  another 
lineage,  would  result  no  more  happily  than  the  French  effort 
at  the  end  of  the  eighteenth  century  to  discard  history,  and 

60  Pennsylvania  Constitution,  sec.  7, 
"Works,  Vol.  I,  p.  435. 


68  THE  REFERENDUM  IN  AMERICA 

lay  .the  foundations  of  the  future  on  strange  lines.  Every 
empirical  sentiment,  and  all  the  teachings  of  modern  science, 
combine  to  bring  home  to  reasoning  men  this  one  great  fact 
which  will  live  as  long  as  the  world  lasts  and  human  govern- 
ment endures. 


CHAPTER  III 

THE  RISE  OF  THE  CONSTITUTIONAL  CONVENTION  AND  THE  DE- 
CLINE OF  THE  LEGISLATURE 

ALTHOUGH  an  unfriendly  newspaper  critic  had  alleged  that 
it  was  ridiculous  for  "  the  thirteen  United  States  of  America 
to  maintain  an  Ambassador  in  England  at  the  enormous  ex- 
pense of,  perhaps,  eight  or  ten  guineas  per  day  for  no  other 
visible  purpose  than  to  write  a  eulogium  on  the  British  gov- 
ernment under  the  sham  pretence  of  vindicating  the  Amer- 
ican Constitutions  'V  Mr.  Adams'  "  Defence  "  of  these  Con- 
stitutions against  the  attack  of  M.  Turgot  exerted  a  very 
great  influence  when  it  appeared,  well  supplementing  the 
work  which  he,  and  those  who  thought  with  him,  had  earlier 
done  in  behalf  of  the  system  of  checks  and  balances  in  the 
United  States.  So  well  established  were  these  views,  how- 
ever, by  the  time  the  Federal  Convention  met  that  the  advo- 
cates of  a  single  chamber  were  an  insignificant  force. 
Madison  wrote  in  the  Federalist  in  1788  respecting  a  legis- 
lature of  two  houses :  "  This  is  a  precaution  founded  on  such 
clear  principles  and  now  so  well  understood  in  the  United 
States  that  it  would  be  more  than  superfluous  to  enlarge  on 
it."  2 

In  other  States  than  Pennsylvania  there  had  also  been  a 
tendency  toward  the  simpler  forms,  and  notably  in  Massa- 
chusetts, where  John  Adams  himself  drafted  the  first  consti- 
tution, it  having  been  adopted  by  the  convention  as  it  came 
from  his  pen  without  material  amendment.  It  has  survived 
to  this  day  in  its  fundamental  form  though  as  the  years  have 
rolled  along  some  changes  have  been  dictated  by  modified 
conditions  and  circumstances.  Adams'  Constitution  is  still 

1  Pennsylvania  Packet.,  October  5,  1787. 

2  The  Federalist,  p.  292. 

69 


70  THE  REFERENDUM  IN  AMERICA 

the  Constitution  of  Massachusetts,  though  119  years  have 
passed  over  its  head,  a  remarkable  tribute  to  the  political 
wisdom  of  its  author  which  is  contrasted  in  a  striking  way 
with  the  brief  and  unhappy  life  of  Franklin's  a  priori  scheme 
of  government  in  Pennsylvania.  Even  Samuel  Adams  is 
said  to  have  been  inclined  toward  a  single  house  of  legis- 
lature in  Massachusetts,3  and  later  as  the  people's  discontent 
spread,  with  the  severer  financial  conditions  which  were 
brought  on  by  the  war,  they,  dissatisfied  and  unable  to  trace 
their  ills  to  the  true  source,  made  it  an  occasion  to  demand  a 
more  democratic  form  of  government.  For  instance,  at  the 
convention  in  Hampshire  County  that  met  in  1786,  just  prior 
to  "  Shay's  Rebellion  ",  which  the  State  government,  as  it 
had  been  constituted,  was  fortunately  strong  enough  to  cope 
with  in  a  summary  way,  it  was  asserted  that  the  Senate  was 
a  most  obnoxious  feature  of  the  Constitution.  Since  it 
seemed  to  be  a  restraint  upon  the  insurgents'  mischievous 
designs,  they  desired  that  the  second  house  should  be  abol- 
ished.4 An  insurrection  in  New  Hampshire  also  evidenced 
much  popular  dissatisfaction  in  that  State.  Changes  in  the 
Constitution  were  desired  since  the  existing  government  had 
proven  itself  strong  enough  to  prevent  the  realization  of  the 
plans  of  certain  agitators  for  unlimited  issues  of  paper  money 
and  a  more  equal  distribution  of  property. 

It  was  these  outbreaks,,  Adams  tells  Franklin,  which  really 
set  him  to  the  task  of  writing  his  "  Defence  of  the  American 
Constitutions  ".  The  work  was  suggested,  he  says,  by  "  the 
late  popular  frenzy  in  Massachusetts  and  New  Hampshire  ". 
A  government  of  three  departments  and  a  legislature  of  two 
houses  in  order  to  prevent  a  regime  of  disorder  under  the 
leadership  of  a  passionate  convention  without  checks  of  any 
sort — this  is  "  the  only  sense  ",  Mr.  Adams  adds,  "  in  which 
I  am  or  ever  was  a  republican.5  "  In  recalling  this  period  of 

8  John  Adams'   Works,  Vol.  I,  pp.  286-7;  also  Vol.  IX,  p.  618. 

4  G.  L.  Austin,  History  of  Massachusetts,  Boston,  1876,  p.  365. 

5  Sparks'  Works  of  Franklin,  Vol.  X,  p.  284 — a  letter  to  Franklin  from 
London,  dated  January  27,  1787. 


THE  CONVENTION  AND  THE  LEGISLATURE        7* 

his  life  afterward,  in  1809,  Mr.  Adams  referred  to  the  anxiety 
which  he  felt  while  his  "  Defence  "  was  in  preparation,  lest 
the  dispersion  of  extreme  democratic  sentiments  in  Massa- 
chusetts should  lead  to  total  anarchy,  and  wrote :  "  Every 
western  wind  brought  us  news  of  town  and  county  meetings 
in  Massachusetts  adopting  Mr.  Turgot's  ideas,  condemning 
my  Constitution,  reprobating  the  office  of  governor  and  the 
assembly  of  the  senate  as  expensive,  useless  and  pernicious, 
and  not  only  proposing  to  toss  them  off  but  rising  in  rebellion 
against  them.  In  this  situation  I  was  determined  to  wash  my 
hands  of  the  blood  that  was  about  to  be  shed  in  France,  Eu- 
rope and  America  and  show  to  the  world  that  neither  my  sen- 
timents nor  actions  should  have  any  share  in  countenancing 
or  encouraging  any  such  pernicious,  destructive  and  fatal 
schemes".0  All  over  America,  indeed,  though  nowhere  to  so 
marked  a  degree  as  in  Pennsylvania,  the  friends  of  extremely 
democratic  forms  were  a  very  active  force.  Thoroughly 
beaten  and  discredited  as  they  were  by  the  adoption  of  the 
Federal  Constitution,  and  by  the  lessons  which  all  the  world 
could  draw  from  the  dire  occurrences  of  the  French  Revolu- 
tion, the  same  elements  continued  to  exert  an  influence  on 
American  politics  for  many  years. 

Convinced  as  the  best  minds  then  were,  and  as  we  still 
must  be  in  looking  back  over  the  history  of  the  Ameri- 
can States,  that  their  constitutional  development  was  natural 
and  proper  only  so  long  as  it  conformed  to  those  empirical 
principles  which  Adams  so  clearly  perceived  and  so  ably  de- 
fended, there  have  come  up  in  course  lately  some  things  that 
contrast  rather  curiously  with  earlier  events.  The  growth  of 
the  influence  of  the  constitutional  convention  is  unquestiona- 
bly one  of  the  most  remarkable  manifestations  in  the  field  of 
popular  government  in  the  United  States  to-day.  The  con- 
vention has  been  gaining  strength  year  by  year  and  has  been 
absorbing  powers  that  it  earlier  did  not  possess  until  the  leg- 
islature with  its  boasted  two  chambers,  once  the  centre  of  so 
peculiar  a  constitutional  contest,  is  to-day  little  more  than  a 

'Adams'  Works,  Vol.  IX,  pp.  621,  et  seq. 


72  THE  REFERENDUM  IN  AMERICA 

shadow  of  its  former  self.  One  of  the  three  departments  of 
government,  the  legislative,  expressed  itself  through  the  leg- 
islature which  has  now  had  to  divide  its  honors  with  another 
legislative  agency,  the  convention.  This  convention,  oddly 
enough,  is  an  assembly  of  a  single  chamber,  from  which  the 
founders  of  the  government  strove  so  diligently  to  keep  us 
free.  How  we  have  come  through  this  development  it  will 
be  my  task  in  this  chapter  to  demonstrate. 

There  has  never  been  the  slightest  doubt  in  the  minds  of 
publicists  who  have  written  of  our  institutions  as  to  where 
sovereignty  resides.  It  resides  with  the  people.  They  are  the 
original  source  of  the  government's  authority ;  it  is  with 
them  as  the  object  of  its  activities  that  the  state  exists.  They, 
somewhat  in  the  way  of  a  great  abstraction,  serve  us  as  a 
background  for  our  political  thinking,  and  from  them  the 
various  agencies  of  the  government  are  traced  out  historically 
into  their  present  forms.  Political  philosophy  devotes  it- 
self to  exploring  the  field  and  defining,  in  so  far  as  it  can  do 
this,  the  frontiers  of  government,  laying  out  the  bounda- 
ries of  the  "  state  "  in  relation  to  whatever  else  exists  in 
our  social  system.  Political  science,  taking  these  frontiers 
as  they  have  been  established,  looks  to  the  problem  of  or- 
ganizing the  state,  of  giving  to  it  a  definite  position  in  the  so- 
cial scheme,  of  appointing  its  agents  and  assigning  to  each 
its  suitable  tasks.  We  have  noted  how  at  great  pains  the 
American  governments  were  held  to  three  main  departments, 
the  legislative  for  enacting  the  law,  the  judicial  for  expound- 
ing and  interpreting  it  and  the  executive  for  carrying  it  into 
effect.  The  people  as  the  sovereign  power  had  delegated  to 
these  agencies,  one  checking  the  other,  in  order  to  secure  sta- 
bility and  equipoise — thus,  as  it  were,  putting  a  spine  in  the 
creature  that  it  would  not  fall  with  every  turn  of  the  wind — 
the  authority  to  act  in  their  name  as  the  government  and  the 
state. 

Now,  how  does  the  State  constitution  fit  into  this  system, 
and  in  what  relation  does  the  convention,  which  framed  it, 
stand  to  these  other  agencies  of  the  government?  The 


THE  CONVENTION  AND  THE  LEGISLATURE        73 

Americans  turned  to  a  written  constitution  in  the  most  nat- 
ural way,  and  again  chiefly  because  they  were  at  ground 
Englishmen,  or,  at  any  rate,  colonists  gone  out  from  the 
British  Islands,  carrying  with  them  their  grants  and  charters 
in  which  were  guaranteed  to  them  the  rights  they  prized  so 
highly.  It  is  true  that  England  herself  had  not  then,  and 
still  to-day  has  not  a  written  constitution.  Throughout  the 
colonial  period,  however,  in  the  struggle  with  the  crown  and 
the  proprietors  it  was,  with  the  American  colonists,  a  ques- 
tion of  securing  from  England  fresh  concessions,  and  not 
any  of  a  chimerical  kind  but  those  which  were  couched  in 
definite  terms  and  which  the  delegates,  who  often  sought 
them  in  person,  could  bring  home  with  them  in  writing 
across  the  ocean. 

It  was  a  development  perhaps  not  quite  so  natural  that 
these  constitutions  should  be  framed  by  conventions,  i.  e.  by 
bodies  of  delegates  separately  chosen  to  do  this  important 
work,  rather  than  that  the  task  be  intrusted  to  the  regular 
legislature  which  has  created  and  continues  to  build  up  the 
English  Constitution.  But  it  is  necessary  to  consider  the 
fact  that  when  the  colonies  broke  loose  from  their 
English  moorings,  the  aristocratic  assemblies  and  royal 
governors  could  no  longer  be  safely  utilized.  These  were  fol- 
lowed by  conventions,  or  provincial  conferences,  or  con- 
gresses, however  they  may  have  been  denominated.  As 
Jameson,  in  his  classic  work  on  Constitutional  Conventions, 
clearly  points  out,  these  bodies  were  of  the  "  revolutionary  " 
type  exercising  powers  of  various  kinds ;  not  only  framing 
new  constitutions,  but  also  electing  magistrates  and  members 
of  the  general  Congress,  enacting  statute  law  on  a  wide  vari- 
ety of  topics  and  providing  for  the  common  defense.  They 
got  their  authorization  through  force,  i.  e.,  lacking  other 
means,  the  stronger  party  in  the  colonies  allowed  these  bod- 
ies of  delegates  to  step  in  and  do  what  was  considered  to  be 
expedient  to  establish  and  perpetuate  the  principles  which 
this  stronger  party  valued  and  held  to  be  dear.  Some  of 
the  first  constitutions  were  framed  by  the  same  bodies  which 


74  THE  REFERENDUM  IN  AMERICA 

acted  regularly  as  legislatures,  as  in  New  Hampshire  in  the 
case  of  the  Constitution  of  1776,  and  in  Virginia  a  few 
months  later ;  and  with  hardly  an  exception  the  bodies  which 
framed  the  constitutions  enacted  also  a  considerable  amount 
of  ordinary  legislation  to  serve  temporary  ends,  even  when 
called  for  the  single  purpose  of  devising  a  form  of  govern- 
ment with  the  expectation  that  they  would  adjourn  and  make 
way  for  other  agents  so  soon  as  their  special  task  had  been 
performed. 

Although  it  was  early  less  clear  than  it  has  since  come  to 
be  that  a  convention  should  not  enact  statute  or  municipal 
law,  the  belief  was  even  then  well  grounded  that  the  legis- 
lature should  not  mix  in  with  the  work  of  making  the  con- 
stitutional and  fundamental  law  of  a  State.  The  legislature 
of  Massachusetts  in  1778,  acting  on  its  own  responsibility, 
had  framed  a  Constitution  which  was  submitted  to  the  town 
meetings.  The  people  rejected  it  because  they  were  led  to 
think  that  it  had  been  prepared  in  an  irregular  way,  that  is, 
by  the  legislature  rather  than  by  a  convention  specially  cho- 
sen for  the  work.  Almost  immediately  afterward  the  people 
of  Massachusetts  voted  to  delegate  the  task  to  a  convention 
and  the  Constitution  framed  by  this  body  met  with  popular 
approval.  In  South  Carolina  where  the  Constitutions  of 
1776  and  1778  were  framed  by  the  legislature  the  Supreme 
Court  declared  that  "  the  form  of  government "  was  "  no 
more  than  any  other  legislative  act  ".  The  same  authority 
that  made  it  could  repeal  it  again  whenever  it  chose.7 

In  but  one  or  two  instances  at  that  early  time  was 
the  legislature  authorized  either  to  make  or  propose 
amendments  to  the  constitution  after  it  had  been  pro- 
mulgated as  the  organic  law  of  the  State,  and  then  only 
under  severe  limitations.  In  one  State,  at  least,  Pennsyl- 
vania, where  the  Assembly  was  given  large  and  various  pow- 
ers in  respect  of  other  matters  such  authority  was  in  specific 
terms  prohibited  to  the  legislature.  The  Constitution  de- 
clared that  the  legislature  should  have  no  right  "  to  add  to, 

7Cf.  2  McCord's  R.,  p.  354. 


THE  CONVENTION  AND  THE  LEGISLATURE        75 

alter,  abolish  or  infringe  any  part  of  this  Constitution".8  By 
the  differentiation  of  these  two  functions  of  statute  law-ma- 
king and  constitutional  law-making  another  check,  or  bal- 
ance, was  introduced  into  our  system,  and  how  separate  and 
distinct  have  been  the  careers  of  the  convention  for  enact- 
ing the  fundamental  law  and  of  the  legislature  for  enacting 
ordinary  legislation  is  emphasized  very  strongly  by  a  study 
of  the  later  history  of  the  development  of  political  institutions 
in  our  American  States. 

Within  a  comparatively  recent  time,  however,  another  ten- 
dency has  manifested  itself  and  our  earlier  discussions  as  to 
the  relation  which  should  exist  between  the  convention  and 
the  legislature  have  developed  new  aspects.  Much  interest- 
ing material  is  afforded  the  student  in  this  field  of  inquiry. 
It  has  been  asserted  by  the  members  of  some  of  the  conven- 
tions, and  they  have  been  upheld  in  the  view  by  justices  of 
certain  State  courts,  delivering  official  or  unofficial  opin- 
ions on  the  subject,  that  the  conventions  are  over  and  beyond 
all  law.  These  bodies  are  sometimes  looked  upon  as  ex- 
traordinary agents  exercising  extraordinary  powers,  being 
not  a  part  of  the  system  of  State  government  but  the  author 
of  it,  and  therefore  independent  of  any  other  agent  the  peo- 
ple may  establish.  It  has  been  argued  that  when  the  conven- 
tion meets  the  State  is  again  resolved  into  its  original  parts, 
a  notion  borrowed  of  course  from  France,  analogies  being 
drawn  between  our  own  and  the  French  constituent  assem- 
blies of  revolutionary  types.  When  the  convention  meets, 
the  people,  it  is  said,  take  back  to  themselves  all  the  authority 
they  ever  delegated,  i.  e.  to  the  State  government,  but  a  re- 
siduary portion  of  course  since  certain  enumerated  powers 
have  been  made  over  to  the  Federal  government  which  may 
be  resumed  again  only  by  means  of  a  separate  Federal  pro- 
cess.9 Such  a  view,  however,  must  be  regarded  as  wholly 

8  Constitution  of  1776,  sec.  g. 

8  Cf.  Tenth  Amendment  of  the  Federal  Constitution  ;  Jameson,  Con- 
stitutional Conventions,  4th  ed.,  p.  87;  Cooley,  Principles  of  Constitu- 
tional Law,  pp.  29-30. 


76  THE  REFERENDUM  IN  AMERICA 

untenable  in  the  face  of  the  evidence  and  argument  adduced 
by  Judge  Jameson.10  It  is  the  accepted  theory  to-day,  as  a 
result  of  our  development  and  experience  in  respect  of  con- 
ventions, that  they  must  co-operate,  in  a  way  at  least,  with 
the  other  agencies  of  government  which  the  sovereign  soci- 
ety has  established.  It  is  necessary  to  the  regular  and  or- 
derly working  out  of  our  system  that  the  legislature,  which 
has  been  aptly  called  "  the  sentinel  on  duty  ","  shall  put  into 
motion  the  machinery  for  the  assembling  of  the  convention 
and  shall  perhaps  also  in  some  measure  prescribe  the  bounds 
within  which  it  may  act.  Precedents  upon  this  point  are  now 
so  numerous  that  no  other  view  can  be  allowed  and  conven- 
tions which  were  assembled  on  their  own  authority,  responsi- 
ble to  no  established  organ  of  the  State,  would  be  mere  mass 
meetings,  akin  only  to  those  of  1776,  of  the  secession  and 
reconstruction  periods  in  this  country,  and  of  1789  and  af- 
ter in  France.  Such  conventions  might  become  a  source  of 
very  serious  danger  and,  were  these  unbridled  assemblies  a 
part  of  our  scheme  of  government,  the  days  of  the  American 
democracy  could  be  reckoned  near  their  end.  The  conven- 
tion, if  precedent  is  followed  and  good  counsel  from  our 
history  and  experience  are  sought,  will  never  gain  such  ascen- 
dency over  the  legislature  and  the  other  agencies  of  govern- 
ment as  to  get  entirely  free  of  reasonable  restraints. 

It  is  of  much  theoretical  interest  to  speculate  in  regard  to 
the  instability  of  our  institutions  were  the  convention  to 
gain  unwonted  power  at  the  expense  of  the  other  agencies 
of  government.  But  it  must  be  of  a  great  deal  more  actual 
present  importance  to  us  to  note  how  the  convention  is  ma- 
king head  against  these  rival  agencies,  and  particularly  the 
legislature,  from  another  side  where  the  ramparts  are  not  so 
high  nor  so  well  defended.  No  tendency  among  all  those 
which  are  at  work  in  the  domain  of  government  upon  this 

10  Von  Hoist's  opinion  is  divergent ;  cf.  Apendix  C  of  Jameson's 
work  on  Constitutional  Conventions;  cf.  also  Reports  of  cases  before  a 
leading  State  court,  both  confirmatory  of  Jameson. — Wells  v.  Bain,  75 
Pa.  39;  and  Woods'  Appeal,  75  Pa.  59.  "Jameson,  op.  cit.,  p.  365. 


THE  CONVENTION  AND  THE  LEGISLATURE        77 

side  of  the  Atlantic  Ocean  is  more  striking  and  none  should 
claim  a  larger  share  of  our  interest  and  concern.  It  is  a 
silent  and  gradual  revolution  which  is  bringing  the  State 
legislatures  into  a  condition  of  relative  impotency.  By  any 
rightful  interpretation  of  the  term  a  constitution  must  be 
considered  to  be  an  outline  of  the  principles  of  government. 
It  is  a  statement  of  essential  and  fundamental  facts  regard- 
ing the  organization  of  the  state.  Our  own  Federal  Con- 
stitution is  a  type  of  what  a  written  constitution  should  be, 
a  charter  that  clearly  defines  the  greater  and  more  general 
relations  between  the  sovereign  society  and  the  agencies  by 
which  its  authority  is  outwardly  made  manifest.  The  Eng- 
lish Constitution,  though  unwritten,  is  no  less  real.  It  is 
perfectly  definable.  It  embraces  no  rules  in  respect  of  the 
traffic  in  wines,  spirits  and  beer;  provisions  in  regard  to  the 
granting  of  free  passes  on  railways  are  foreign  to  it,  as  are 
also  rules  concerning  the  legal  rate  of  interest  on  loanable 
money,  newspaper  libel,  the  duello  or  the  lottery  which  we 
so  often  find  to-day  in  American  State  Constitutions.  The 
Constitutions  of  Germany,  Switzerland  and  France  are  not 
repositories  for  legislation  regarding  comparatively  trivial 
affairs.  "  By  the  constitution  of  a  commonwealth/'  Jame- 
son says,  "  is  meant  primarily  its  make-up  as  a  political  or- 
ganization, that  special  adjustment  of  instrumentalities, 
powers  and  functions  by  which  its  form  and  operation  are 
determined."  12  Again  this  high  authority  says :  "  A  con- 
vention is  authorized  to  embody  in  the  constitution  general 
provisions  establishing  principles,  but  leaving  details  depend- 
ent on  considerations  of  temporary  expediency  to  be  deter- 
mined by  the  legislature."13  For  these  reasons  we  find  that 
legislation  of  this  kind  is  called  the  "  fundamental  law  "  or 
the  "  organic  law  ".  It  has  a  character  of  its  own  inviolable 
in  the  minds  of  all  men  who  are  trained  to  recognize  the 
simplest  of  legal  and  political  distinctions.  How  ruthlessly 
we  have  leveled  these  barriers  that  divide  two  great  classes 

12  Jameson,  p.   67. 

13  Ibid.,  p.  429. 


7  8  THE  REFERENDUM  IN  AMERICA 

of  law  it  will  be  my  task  here  now  in  a  general  way  to  indi- 
cate.14 

At  first  the  legislatures  were  left  a  very  wide  field  for 
their  activities.  To  them  was  given  comparative  freedom 
to  fill  out  the  skeleton  of  government,  to  put  in  the  flesh,  and 
fibre.  They  indeed  exercised  very  extensive  powers  which 
were  not  legislative  in  any  true  sense.  They,  in  many  cases, 
chose  the  Governors,  or  Presidents,  of  the  States.  They 
thus  exerted  an  important  control  over  the  executive  depart- 
ment of  the  government.  Such  privileges  seem  to  have  been 
enjoyed  by  the  legislatures  of  all  the  States  during  the  Rev- 
olutionary period,  except  Massachusetts  and  New  York.  The 
legislatures  chose,  not  only  the  Governors,  but  also  the  Gov- 
ernors' Councils  in  a  great  many  States,  as  well  as  other 
State  executive  and  administrative  officers,  such  as  the 
State  Treasurer  and  the  Secretary  of  the  Commonwealth. 
The  State  legislatures  elected  the  delegates  to  the  Continental 
Congress.  The  judges  of  the  higher  courts  were  appointed 
by  the  legislature  as  was  the  Attorney-General  or  public 
prosecutor,  and  in  some  cases,  as  in  Delaware,15  the  judges 
of  the  county  courts  were  chosen  by  the  same  power.  The 
legislature  sometimes  even  selected  the  members  of  the  second 
house  or  Senate,  which  is  to  say  that  the  legislature  was 
elected  by  the  people  as  a  single  house,  and,  either  resolved 
itself  into  two  chambers  afterward,  as  was  the  case,  for  in- 
stance, in  South  Carolina,  or  went  outside  of  its  own  body, 
as  in  New  Hampshire,  selecting  the  members  of  a  second 
house  from  the  people  of  the  State  at  large.  To  the  legis- 
lature was  sometimes  entrusted  also  the  duty  of  appointing 
the  officers  of  the  State's  land  and  naval  forces,  as  by  the 
first  Constitutions  of  Delaware  and  New  Hampshire.  The 
legislature  was  in  no  case  subject  to  an  executive  veto  ex- 

14  In  recent  years  attention  has  been  frequently  directed  to  this  de- 
velopment ;  cf.  Bryce,  op.  cit.,  Vol.  I,  pp.  443  et  seq. ;  Borgeaud,  op.  cit., 
PP-  39  &t  seq. ;  Lowell,  Governments  and  Parties  in  Continental  Europe, 
1897,  Vol.  II,  p.  293. 

18  Constitution  of  1776,  art.  xii. 


THE  CONVENTION  AND  THE  LEGISLATURE         79 

cept  in  Massachusetts  and  New  York,  the  Governor  applying 
the  negative  in  the  former  State,  and  a  Council  of  Revision, 
composed  of  the  Governor,  the  chancellor  and  the  judges  of 
the  Supreme  Court,  in  the  latter  commonwealth. 

No  long  time  elapsed,  of  course,  until  the  people  acted  di- 
rectly in  the  choice  of  their  Governors  and  Congressmen  in 
all  the  States  of  the  Union.  Councilors  came  to  be  officers 
in  the  personal  cabinets  of  the  Governors,  following  the  ex- 
ample set  by  the  Federal  Constitution,  or  else  were  elected 
by  the  people.  The  judges  became  either  appointive  by  the 
Governors  or  elective  by  the  people.  The  appointment  of 
the  officers  of  the  State  militia  was  added  to  the  Governor's 
prerogatives.  In  short,  the  various  State  legislatures  were 
soon  shorn  of  nearly  all  their  powers  in  the  selection  of  mag- 
istrates, becoming  simple  law-making  bodies,  which  it  is  their 
function  to  be,  of  two  chambers  one  having  a  negative  upon 
the  other,  the  Governor  possessing  a  veto  upon  the  action  of 
both. 

This  was  a  natural  and  legitimate  development  which  was 
certain  to  ensue  so  soon  as  the  various  governments  were 
fairly  organized,  and  the  example  of  Massachusetts  and  New 
York,  and  above  all  of  the  Federal  Constitution,  was  at  hand 
and  could  be  pointed  to  as  embodying  a  type  system  for  the 
free  States  of  this  continent.  Another  and  a  less  natural 
movement  to  curtail  the  powers  of  the  legislature  was 
aimed  against  it  in  its  capacity  as  a  law-making  body  and 
was  begun  by  its  rival  in  the  law-making  field,  the  constitu- 
tional convention.  It  was  through  the  offices  of  the  conven- 
tion, of  course,  that  the  legislature  had  been  stripped  of  its 
authority  in  the  choice  of  magistrates,  but  the  first  great  ad- 
vance made  against  the  legislature  in  the  more  recent  move- 
ment to  lop  off  its  powers  was  the  change  from  annual  to 
biennial  sessions.  Earlier  it  was  the  universal  rule  in  the 
different  States  to  elect  the  members  of  the  legislature  every 
year.  If  this  were  not  the  custom  respecting  both  branches, 
it  was  so  at  least  with  respect  to  the  lower  house  or  more 
popular  branch  of  the  legislative  assembly.  The  legisla- 


8o  THE  REFERENDUM  IN  AMERICA 

ture  was  not  only  elected  each  year,  but  it  met  annually  also, 
and  this  system  prevailed  with  no  exceptions  until  we  were 
well  along  in  this  century.  Among  the  original  States  of 
the  Union  making  this  change  may  be  named  Delaware 
which  introduced  biennial  sessions  in  1831. 16  Maryland  made 
the  change  in  1846  17  and  Virginia  in  1850,  returning  to  an- 
nual sessions  in  1870,  but  again  abandoning  the  system  in 
favor  of  a  session  every  second  year  in  1876.  Now  all  the 
forty-five  States  of  the  Union  have  amended  their  Consti- 
tutions in  favor  of  biennial  legislative  sessions,  or  in  many 
instances,  as  in  the  newer  States,  have  never  known  any 
other  system,  except  New  York,  Massachusetts,  New  Jer- 
sey, Rhode  Island,  South  Carolina  and  Georgia.  The 
Georgia  Convention  of  1877  18  provided  for  meetings  of  the 
legislature  every  second  year  instead  of  annually,  as  had 
been  the  rule  before,  but  in  1892  upon  the  initiation  of  the 
legislature,  the  Constitution  was  amended  and  the  annual 
meeting  was  restored  to  the  political  practice  of  the  State.19 
This  seems  to  be  the  only  case  in  which  a  real  desire  has  been 
manifested  for  a  return  to  the  system  of  annual  legislative 
sessions  and  the  tendency  in  all  parts  of  the  Union  has  been 
steadily  in  the  other  direction.  In  those  few  States  in  which 
the  legislatures  still  convene  annually,  and,  notably  in  New 
York  and  New  Jersey,  there  is  no  concealment  of  the  public 
distrust  for  these  bodies,  while  the  conviction  seems  to  grow 
that  it  would  be  a  very  much  better  arrangement  should  they 
meet  less  frequently.  Indeed  in  one  State,  Mississippi,  by 
the  Constitution  of  iSgo20  the  convention  has  gone  yet  a 
step  farther,  providing  for  regular  legislative  sessions  only 
once  in  four  years.  In  the  interval ,  however,  two  years  af- 
ter the  adjournment  of  the  regular  session,  a  special  session 
may  be  called  but  this  may  not  continue  for  a  longer  term 
than  thirty  days. 

18  Constitution  of  1831,  art.  ii,  sec.  4. 

17  Amendments  to  the  Constitution  of   1776,  art.  xxvi. 

18  Art.  ii,  sec.  4,  paragraph  3,  of  the  Constitution. 
J9  Georgia  Laws,  1890-91,  PP-  55-6.         20  Sec.  36. 


THE  CONVENTION  AND  THE  LEGISLATURE        81 

Thus  we  note  that  in  nearly  all  the  States  of  the  Union 
the  convention  has  reduced  by  one  half  the  activity  and  power 
of  the  legislature  as  a  law-making  agency,  and  this,  despite 
the  fact  that  our  social  life  to-day  is  more  complex  than  ever 
before,  the  communities  more  populous,  and  human  require- 
ments correspondingly  greater,  while  political  philosophy  is 
all  the  time  extending  the  field  of  government  and  giving 
organized  society  a  hand  in  an  increasing  number  of  our 
worldly  affairs. 

The  change  from  annual  to  biennial  sessions,  however,  is 
not  by  any  means  the  only  curtailment  of  the  legislature's 
powers  recently  effected  through  the  instrumentality  of  the 
constitutional  convention.  Not  only  does  the  convention 
bind  the  legislature  to  a  single  session  in  two  years,  unless, 
of  course,  the  Governor  should  convene  an  extra,  or  special 
session,  but  it  fixes  a  limit  to  the  number  of  days  during 
which  that  session  shall  last.  This  is  a  very  late  develop- 
ment in  the  constitutional  practice  of  the  States,  and  the  re- 
sult has  been  attained  in  several  ingenious  ways.  The  sim- 
plest method  is  to  place  an  absolute  limit  upon  the  length  of 
the  session.  For  instance,  the  Constitution  of  Maryland 
says  :21  "  The  General  Assembly  may  continue  its  session  so 
long  as  in  its  judgment  the  public  interest  may  require  for  a 
period  not  longer  than  ninety  days."  Special  sessions  which 
may  be  convened  by  the  Governor  are  not  to  continue  for  a 
longer  time  than  thirty  days.  In  Montana  the  limit  is  set 
at  sixty  days,22  and  in  Alabama  at  fifty  days.23  In  Florida 
the  regular  sessions  "  may  extend  to  sixty  days  "  while  a 
special  session  is  not  to  last  longer  than  twenty  days.24  In 
Indiana  a  regular  session  may  continue  for  sixty-one  days, 
while  forty  days  is  the  limit  prescribed  for  a  special  session.25 
The  limit  in  Kentucky  is  sixty  days  ;26  in  North  Dakota  sixty 

21  Constitution  of   1867,  art.   iii,   sec.    15. 

22  Constitution  of   1889,  art.  v,   sec.   6. 

23  Constitution  of   1875,  art.   iv,  sec.   5. 

24  Constitution  of  1885,  art.  iii,  sec.  2. 

25  Constitution  of   1851,  art.  iv,  sec.  29. 
36  Constitution  of  1891,  sec.  42. 


82  THE  REFERENDUM  IN  AMERICA 

days;27  in  South  Dakota  sixty  days;28  in  Washington  sixty 
days  ;29  in  Wyoming  sixty  days  ;30  in  Colorado  ninety  days,31 
having  been  increased  from  forty  days  in  1884,  on  the  initia- 
tion of  the  legislature. 

Sometimes,  too,  it  is  left  to  the  legislature  itself  to  de- 
termine, by  a  vote  somewhat  larger  than  a  majority  of  its 
members,  whether  the  session  shall  last  longer  than  a  pre- 
scribed number  of  days.  For  example,  the  Constitution 
of  Virginia  provides  that,  "  No  session  of  the  General  As- 
sembly shall  continue  longer  than  ninety  days  without  the 
concurrence  of  three  fifths  of  the  members  elected  to  each 
house;  in  which  case  the  session  may  be  extended  for  a 
further  period  not  exceeding  thirty  days."32  In  West  Vir- 
ginia the  limit  of  the  life  of  the  session  is  fixed  at  forty-five 
days,  unless  two-thirds  of  the  members  of  each  house  shall 
vote  to  extend  it.33  A  somewhat  similar  provision  occurs  in 
the  Constitution  of  Arkansas.34 

Again  the  conventions  have  adopted  an  indirect  method  of 
reaching  the  same  end,  namely  by  altogether  stopping,  or  by 
reducing  the  salaries  of  the  members  of  the  legislature  after 
they  have  been  in  session  for  a  certain  time,  adjudged  to  be 
sufficient  for  the  transaction  of  their  business.  The  members 
of  these  bodies,  receiving  a  payment  from  the  public  treasu- 
ries, are  in  some  cases  given  a  per  diem  allowance  instead  of  a 
definite  sum  for  the  session.  Thus  in  Nebraska  the  members 
are  to  have  $3  a  day  each,  provided,  however,  "  that  they 
shall  not  receive  pay  for  more  than  forty  days  at  any  one 
session".35  In  Idaho  the  payments  continue  for  sixty  days, 
in  Kansas  fifty  days,  Kentucky  sixty  days,  Oregon  forty  days, 

27  Constitution  of  1889,  art.  ii,  sec.   56. 

28  Constitution  of  1889,  art.  iii,  sec.   6. 

29  Constitution  of  1889,  art.  ii,  sec.   12. 

30  Constitution  of  1889,  art.   iii,   sec.   6. 

81  Constitution  of  1876,  art.  v,  sec.  6. 

82  Constitution   of   1870,  art.  v,  sec.  6. 

83  Constitution  of  1872,  art.  vi,  sec.  22. 

84  Constitution  of  1874,  art.  v,  sec.   17. 

85  Constitution  of  1875,  art.  ii,  sec.  21. 


THE  CONVENTION  AND  THE  LEGISLATURE       83 

Tennessee  seventy-five  days.  In  Texas  the  payment  is  at  the 
rate  of  $5  per  day  for  the  first  sixty  days  and  $2  per  day  for 
the  remainder  of  the  session.36  Here  again  is  another  potent 
influence  working  to  limit  the  legislature's  activity  and  to 
keep  it  within  established  bounds. 

In  late  years  the  legislatures,  through  the  means  lying 
nearest  to  their  hand,  have  occasionally  put  forth  efforts  to 
restore  themselves  to  earlier  power  by  making  proposals  to 
amend  the  constitution  which  is  a  privilege  that  they  gen- 
erally possess.  Thus  propositions  for  a  return  to  annual  ses- 
sions, for  an  increase  of  the  number  of  days  during  which 
the  session  may  continue,  for  the  increase  of  the  salaries  of 
the  members  and  so  on,  are  submitted  to  the  people  who  as  a 
rule  quite  promptly  reject  them.  The  legislatures  there- 
fore have  never  succeeded  in  regaining  very  much  of  their 
lost  ground  by  these  heroic  attempts  to  re-instate  themselves 
in  public  favor. 

The  conventions,  however,  go  even  farther  than  this  in 
their  determined  campaign  against  the  legislature.  They  in- 
corporate in  the  constitution  definite  rules  governing  the  ac- 
tion of  the  legislatures  in  respect  of  many  different  classes 
of  subjects.  The  members  of  these  bodies  are  instructed 
minutely  in  regard  to  the  performance  of  their  duties  as  law- 
makers. They  are  told  what  they  may  do,  and  again  what 
they  may  not  do,  so  that  it  is  a  straight  and  narrow  path,  in 
very  truth,  which  they  must  thread  their  way  along  if  they 
wish  their  laws  to  enter  into  the  Kingdom,  safe  from  the 
revision  of  the  judicial  department  of  the  government. 
Among  other  subjects  to  which  the  conventions  are  turning 
their  attention  to-day  are  the  railways,  and  private  corpora- 
tions generally.  Rules  defining  corporate  rights  and  regu- 
lating the  conduct  of  corporations  have  been  introduced  into 
the  constitutions  in  great  numbers.  These  are  often  very 
burdensome  to  capital,  though  often,  again,  quite  just;  the 
only  point  to  be  insisted  on  in  this  connection  is  the  one  with 
which  we  started  out,  that  laws  of  this  kind  might  more 

88  Constitution  of  1876,  art.  iii,  sec.  24. 


84  THE  REFERENDUM  IN  AMERICA 

properly  come  from  a  legislature  than  from  a  constitutional 
convention.  There  may  be  found,  too,  in  all  the  newer  con- 
stitutions, specific  directions  from  the  convention  regarding 
the  deportment  of  the  legislature  in  respect  of  the  State's 
revenues  and  expenditures.  There  are  rules  for  the  pro- 
tection of  the  sinking  funds  and  for  guarding  the  State's 
credit  against  those  who  would  loan  it  or  grant  it  away. 
There  are  definite  regulations  to  govern  the  State  in  the 
taxation  of  property  and  the  appropriation  of  the  public 
moneys — all  these  provisions,  reflecting  the  distrust  of  the 
conventions  for  the  legislatures,  having  been  framed  in  the 
view  of  putting  up  walls  and  outworks  to  defend  the  honor 
of  the  State  from  the  spoiler,  against  whose  machinations 
popular  government  in  some  of  its  degenerate  forms  seems  to 
furnish  no  guarantee. 

In  the  same  way  the  conventions  have  sought  to  guard  the 
financial  credit  of  the  local  political  units  and,  more  par- 
ticularly in  the  larger  cities,  a  field  in  which  America's  fail- 
ures in  government  have  been  so  notable  and  numerous  as 
to  attract  the  attention  of  the  civilized  world.  By  many  dif- 
ferent devices  the  conventions  have  undertaken  to  restrain 
the  legislatures  in  the  passage  of  local  g@vernment  acts  which 
apply  to  cities,  towns,  counties  and  the  other  local  political 
districts.  The  legislatures  are  confined  within  constantly  nar- 
rowing bounds  in  this  department  of  their  activity.  There 
has  been  a  distinct  tendency  at  work  for  many  years  to 
strip  the  legislature  of  its  power  to  pass  so-called  special 
acts  in  respect  of  municipalities.  If  the  affairs  of  cities  are 
made  the  subject  of  legislation  at  all  it  must  be  in  a  gen- 
eral way,  which  is  to  say  that  rules  which  are  established 
for  one  community  must  apply  to  all,  or,  at  any  rate,  to 
all  of  a  "  class  ",  the  members  of  which  are  similar  in  char- 
acter and  have  the  same  general  requirements.  The  pro- 
hibition of  special  legislation  has  led>  of  course,  to  rather 
peculiar  results  in  some  instances  and  many,  no  doubt,  which 
are  disadvantageous  to  the  cities  so  grouped  together,  since 


THE  CONVENTION  AND  THE  LEGISLATURE       85 

their  needs  are  often,  in  the  nature  of  the  case,  very  di- 
vergent. 

There  are  many  important  classes  of  legislation,  other 
than  laws  to  regulate  local  government,  concerning  which 
the  conventions  declare  that  special  acts  shall  not  be  passed. 
In  California,  for  instance,  according  to  the  present  Consti- 
tution of  the  State  the  subjects  regarding  which  the  legis- 
lature may  not  enact  special  laws  are  classified  under  thirty- 
three  different  heads.37  By  the  new  Constitution  of  Ken- 
tucky twenty-nine  classes  of  special  legislation  are  prohib- 
ited,38 and  the  list  tends  all  the  while  to  grow  appreciably 
longer.  These  prohibitions  extend  to  such  topics  of  legisla- 
tion as  divorce,  the  assessment  and  collection  of  taxes, 
judicial  procedure,  the  punishment  of  crime,  the  conduct 
of  elections,  the  settlement  of  estates  of  deceased  persons, 
the  management  of  public  schools,  remission  of  fines  and 
penalties,  regulation  of  the  rate  of  interest  on  money,  re- 
moval of  county  seats,  the  granting  of  special  privileges  to 
persons  and  corporations,  the  adoption  of  children,  the  pro- 
tection of  fish  and  game,  the  regulation  of  labor  and  trade, 
etc.,  etc. 

Furthermore  a  very  large  number  of  provisions  are  to  be 
found  in  the  more  recent  constitutions  respecting  what,  by 
any  rightful  interpretation  of  the  subject,  would  be  con- 
sidered to  be  mere  rules  to  govern  parliamentary  procedure, 
such  as  would  not  be  entitled,  therefore,  to  a  place  outside 
of  a  handbook  for  the  guidance  of  a  legislative  body.  The 
conventions  determine  when  bills  shall  be  introduced  into 
the  legislature.  In  Nebraska  this  may  be  done  only  daring 
the  first  forty  days  of  the  session ; 3£)  in  California  only  during 
the  first  fifty  days.40  There  are  rules  to  govern  the  reading 
of  bills  prior  to  their  passage,  and  provisions  requiring  that 

"Constitution  of  1879,  art.  iv,  sec.  25. 

88  Constitution  of  1891,  sec.  59. 

88  Constitution  of  1875,  art.  iii,  sec.  4. 

40  Constitution  of  1879,  art.  iv,  sec.  2. 


86  THE  REFERENDUM  IN  AMERICA 

the  subject  of  the  bill  shall  be  expressed  in  its  title,  that  no 
bill  shall  embrace  more  than  one  subject  and  that  money 
shall  not  be  appropriated  during  the  closing  days  of 
any  session.  Such  prohibitions  in  the  newer  Constitu- 
tions are  meant  to  prevent  the  common  "  railroading  "  and 
"  jamming  "  methods  which  the  legislatures  to-day,  to  their 
infinite  discredit,  sometimes  adopt.  The  convention  again 
in  some  cases  has  taken  away  from  the  legislature  the  free- 
dom to  determine  when  a  law  which  it  has  approved  shall 
come  into  effect,  a  future  day  for  its  going  into  force  being 
definitely  set  by  the  constitution,  as  for  instance  the  July  4th 
following  the  date  of  passage.41 

The  conventions,  it  appears,  have  also  taken  unto  them- 
selves the  duty  of  regulating  the  suffrage  in  great  detail, 
of  safeguarding  the  ballot  system  and  making  specifications 
of  many  different  kinds  that  should  be  wholly  foreign  to  a 
constitution.  They  have  even  intervened  to  the  point  of 
guiding  the  other  agents  of  the  government  in  the  exercise 
of  the  police  power  as  in  respect  to  the  prohibition  or  re- 
straint of  the  sale  and  manufacture  of  alcoholic  beverages, 
respecting  lotteries  and  "  gift  enterprises  ",  libels  by  the  press, 
polygamy,  bribery,  "  lobbying  ",  "  log-rolling  "  and  the  pur- 
chase of  men's  votes,  the  duel  and  the  punishment  of  those 
who  commit  offences  against  good  morals.  Various  state 
institutions,  charitable,  educational  and  penal,  receive  thei 
grants  of  power  through  the  convention  and  the  rules  f 
their  conduct  and  maintenance  are  more  or  less  fully  set  fo 
in  the  constitutions.  The  salaries  of  members  of  the  legi 
lature,  governors  and  other  magistrates  are  fixed  by  t 
constitutions  of  the  States.  The  legislature,  in  short,  at  ever 
turn  must  consult  the  charter  from  which  it  derives  its 
powers,  if  it  would  steer  a  course  clear  of  the  conventio: 
and  escape  the  charge  of  having  passed  an  unconstitutio 
act. 

41  Cf.  Constitution  of  Iowa,  art.  iii,  sec.  26 ;  Constitution  of  North 
Dakota,  art.  ii,  sec.  67;  Constitution  of  Colorado,  art.  ii,  sec.  19.  In  this 
case  the  legislature  usually  retains  the  right  to  decide  whether  a  given 
law  is  of  "  immediate  importance  "  and  if  so  it  may  disregard  the  rule. 


51 


THE  CONVENTION  AND  THE  LEGISLATURE       87 

As  the  conventions  have  undertaken  narrowly  to  de- 
fine the  limits  within  which  the  legislatures  may  officiate, 
so  too  have  they  added  details  concerning  the  executive 
and,  more  particularly,  the  judicial  departments  of  the  gov- 
ernment. Rules  which  belong  in  the  practice  code  to  govern 
the  conduct  of  proceedings  in  the  courts  and  which  have  no 
particle  of  right  in  constitutional  law  have  crept  into  these 
instruments  of  government  to  the  lasting  confusion  of  our 
legal  systems.  But  upon  the  dignity  of  no  other  depart- 
ment than  the  legislature,  its  own  vigorous  rival,  has  the 
convention  made  such  serious  attacks,  and  for  the  motives 
of  no  other  has  it  expressed  so  much  distrust.  Indeed  by  no 
other  means  than  a  careful  perusal  and  study  of  these  instru- 
ments in  a  comparative  way  can  any  person  arrive  at  a 
correct  view  of  the  great  variety  of  topics  which  to-day  are 
treated  by  the  constitutional  conventions  in  the  different 
American  States.  This  is  not  better  indicated  than  by  the 
growing  length  of  the  constitutions.  Beginning  we  know  as 
brief  and  condensed  statements  of  the  fundamental  prin- 
ciples of  government,  dignified  in  form,  even  though  they 
were  sometimes  the  work  of  political  illusionists,  they  have 
increased  in  body  and  volume  several  times  over.  The  first 
Constitution  of  Virginia  with  its  famous  Bill  of  Rights  takes 
up  only  four  pages  in  Poore's  edition  of  the  Federal  and 
State  Constitutions.  Virginia's  Constitution  adopted  in  1830 
covers  seven  pages.  Its  successor  framed  in  1850  had  in- 
creased in  length  so  that  it  needed  eighteen  pages,  while 
the  present  Constitution  of  Virginia  fills  twenty-one  pages 
in  the  same  book,  an  increase  between  1776  and  1870  from, 
say,  3000  words  to  15000  words.  Each  of  the  first  two  Con- 
stitutions of  Pennsylvania,  adopted  in  1776  and  1790,  takes 
up  about  eight  pages  in  Poore's  large  quarto  volumes.  The 
present  Constitution  of  the  State  adopted  in  1873  occupies 
twenty-three  pages.  Missouri's  Constitution  was  twelve 
pages  long  in  1820,  increasing  to  twenty-one  pages  in  1865 
and  thirty-three  pages  in  1875.  Illinois  shows  a  striking1 
advancement  from  ten  pages  in  1818  to  twenty-one  in  1848 


88  THE  REFERENDUM  IN  AMERICA 

and  twenty-five  in  1870.  All  the  newer  Constitutions  are 
of  great  length.  Fair  types  of  those  most  recently  adopted 
are  Montana's  in  1889,  Washington's  in  1889,  Mississippi's 
in  1890,  Kentucky's  in  1891,  each  one  of  which  contains 
upwards  of  20000  words.  The  Constitution  of  South  Da- 
kota of  1889  comprises  25000  words,  while  the  Constitu- 
tion of  Louisiana  adopted  in  1898  embraces  no  less  than 
43000  words  codified  in  326  separate  "  articles  " !  The  first 
Constitution  of  Louisiana,  dated  1812,  contained  between 
5000  and  6000  words,  swelling  to  10000  in  1845  and  1852 
and  12000  in  1868.  The  first  Constitution  of  New  Hampshire 
in  1776  contained  only  about  600  words  and  some  of  the 
State  Constitutions  framed  during  the  Revolutionary  time 
contrast  with  those  which  are  being  framed  to-day,  even  for 
the  new  and  sparsely  populated  commonwealths  of  the  "  Far 
West ",  in  a  most  striking  way. 

To  this  curious  and  somewhat  humiliating  position  has 
the  constitutional  convention  brought  the  American  State 
legislature,  possessing  not  the  sovereign  power  of  the  Federal 
Congress  in  greater  matters,  of  course,  but  originally  ex- 
ercising a  very  large  share  of  residuary  authority  in  the 
district  under  its  own  jurisdiction; — the  legitimate  successor 
of  the  same  Parliament  which  gradually  won  its  freedom 
from  the  king  and  the  king's  high  judges,  which  fought  for 
its  life  against  those  who  would  prorogue  it  and  dissolve 
it  contrary  to  its  will,  which  was  the  one  place  where  the 
people  were  given  a  voice  and  an  opportunity  to  impress 
their  views  upon  the  public  polity,  and  which  when  the 
States  declared  their  independence  of  England  became  almost 
the  sole  heir,  as  we  have  seen,  to  the  whole  governmental 
estate.  The  legislature  in  those  States  in  which  good  patterns 
were  followed,  Pennsylvania  being  the  most  notable  excep- 
tion to  the  rule,  was  effectively  curbed  in  some  directions  by 
the  executive  and  judicial  departments  of  the  government, 
but  in  its  own  field  as  a  law  maker  it  was  practically  supreme. 
It  has  been  reserved  to  a  fourth  agency  of  government,  the 
convention,  to  dispute  its  title  to  its  own  birthright. 


THE  CONVENTION  AND  THE  LEGISLATURE       89 

But  is  there  not  perhaps  a  method  by  which  the  legislature 
or  the  other  established  agencies  of  government  can  treat  with 
the  convention,  giving  back  to  the  legislature  the  old  place 
which  belongs  to  it  in  the  enactment  of  statute  law,  while  the 
convention  is  confined  within  its  proper  bounds  as  a  maker 
of  constitutional  law  ?  Judge  Jameson,  our  highest  authority 
on  the  constitutional  convention,  suggests  a  simple  plan  by 
which  to  restore  the  legislature  to  its  own  portion.  Recog- 
nizing the  distinction  between  constitutional  law  and  that 
which,  rightfully  considered,  must  be  held  to  belong  outside 
of  these  limits,  he  is  led  to  some  very  interesting  conclusions. 
"  A  convention  ",  he  says,  "  is  competent  to  recommend  the 
adoption  of  principles  in  such  a  form  and  under  such  con- 
ditions as  are  consonant  with  the  general  conception  of  funda- 
mental legislation  and  no  further.  It  may  indicate  what  has 
become  the  settled  policy  of  the  State  but  if  it  go  beyond  that, 
developing  principles  into  minute  provisions,  likely  as  circum- 
stances shift  to  need  modification,  it  trespasses  upon  the  do- 
main of  the  legislature.  Doubtless  a  constitution  stuffed 
with  legislative  details  may  acquire  legitimacy  by  its  being 
ratified  by  the  people,  for  where  a  constitution  contains  a  posi- 
tive provision  the  courts  cannot  ignore  it  or  annul  it,  but  the 
impropriety  of  such  legislation  would  not 'thereby  be  dis- 
proved or  lessened.  If  legislative  provisions  are  thrust  into 
a  constitution  and  passed  upon  by  the  people,  ought  they  to 
have  the  force  of  laws  any  more  than  when  submitted  to  the 
people  disconnected  with  provisions  truly  fundamental?  In 
the  latter  case  we  have  seen  that  our  courts  pronounce  them 
wholly  without  validity  as  laws.  If  the  same  judgment  be 
not  given  respecting  a  constitutional  provision  consisting  of 
legislative  details,  it  is  simply  because  it  would  be  in  effect  to 
permit  our  judiciary  to  annul  the  charters  under  which  they 
act  on  the  pretext  of  striking  from  them  provisions  not  prop- 
erly fundamental  ",42 

We  of  course  cannot  conceive  of  the  courts  going  to  the 
extreme  length  which  Judge  Jameson  suggests.  They  are 

a  Jameson,  op.  cit.,  pp.  429-30. 


9<>  THE  REFERENDUM  IN  AMERICA 

employed  at  every  session  in  denning  the  frontiers  between 
constitutional  and  statutory  provisions  in  respect  of  subjects 
of  very  many  different  kinds.  Laws  passed  by  the  legislature 
are  declared  "  unconstitutional  "  often  upon  mere  technical 
points.  However,  as  for  the  judiciary  passing  such  a  judg- 
ment upon  a  constitutional  provision,  no  matter  how  much  it 
might  trench  on  powers  which  are  legislative  beyond  any  one's 
ability  to  question  it,  it  is  wholly  inconceivable.  The  judiciary, 
as  the  recorded  cases  clearly  show,  is  not  without  authority 
over  the  convention.  There  is  a  body  of  precedent  and  un- 
written law  on  the  point  to  govern  the  constitutional  conven- 
tion, but  so  long  as  it  keeps  up  the  disguise,  incorporates  its 
acts  in  a  code  and  calls  it  all  the  Constitution  of  Illinois,  of 
Pennsylvania,  or  of  Louisiana  and  no  other  irregularity  is  at 
hand,  the  courts  are  clearly  not  empowered  to  go  behind  the 
presentment  and  declare  that  what  comes  to  them  as  "  consti- 
tutional law  "  is  really  not  this  at  all,  but  something  of  an  en- 
tirely different  character. 

The  judicial  department  being  without  authority  in  the 
case,  it  is  proper  now  to  inquire  if  the  legislature  itself  can 
place  any  practical  restraints  upon  the  convention.  Jameson 
has  made  a  special  effort  to  show  how,  to  a  degree,  the  con- 
vention is  not  a  free  agent,  and  theoretically  the  case  is  well 
worked  out;  but  what  does  the  legislature's  power  really 
amount  to?  Could  it  by  any  possible  method,  if  it  were  so 
disposed,  defend  itself  against  the  encroachments  of  the  con- 
vention ?  It  appears  to  be  well  recognized  both  in  theory  and 
usage  that  it  is  a  power  resting  with  the  legislature  to  call  the 
members  of  the  convention  together.  The  convention  is  an 
extraordinary  body,  meeting  infrequently  and  at  irregular 
times.  The  legislature  may  pass  a  law  saying  when  the  con- 
vention shall  meet,  albeit  usually  only  after  the  question  has 
been  referred  to  the  people.  It  is  the  authority  which  by  cus- 
tom and  right  decides  how  the  convention  shall  be  composed, 
of  how  many  members,  etc.,  the  precise  day  upon  which  it 
shall  assemble,  the  place  at  which  it  shall  assemble.  It  has  the 
power  to  provide  that  the  constitution  which  is  framed  shall 


THE  CONVENTION  AND  THE  LEGISLATURE       91 

be  submitted  to  the  people  for  their  approval  or  rejection,  and 
to  prescribe  an  oath  for  the  members  of  the  convention.  Can 
it,  however,  require  that  the  convention  shall  do  certain 
things,  or  perhaps  refrain  from  doing  certain  other  things, 
changing  the  constitution  only  along  the  lines  which  the  legis- 
lature itself  lays  down  ?  Considerable  precedent  exists  which 
would  seem  to  indicate  that  the  legislature  can  bind  the  con- 
vention, at  any  rate  up  to  a  certain  point,  and  there  would  ap- 
pear to  be  only  three  cases  in  which  conventions  have  under- 
taken to  disobey  the  mandates  of  the  authority  that  brought 
them  into  life.43  The  course  adopted  by  these  conventions 
yielded  them  no  gain  and  led  in  one  instance,  in  Pennsylvania 
in  1873,  to  judicial  opinions  of  a  very  noteworthy  character. 

There  are,  however,  relatively  few  cases  in  which  the  legis- 
lature has  attempted  to  bring  its  own  strength  to  a  full  test. 
It  would  be  difficult,  no  doubt,  to  hold  a  convention  in  check 
with  the  precedents  at  hand  if  the  restrictions  weighed  very 
heavily  upon  it,  though  an  oath  prescribed  by  the  legislature, 
requiring  the  members  of  the  convention  to  act  strictly  in  a 
line  with  the  provisions  of  the  law  by  which  the  body  was 
called  together,  has  been  successfully  employed.  As  full  of 
theoretical  interest  as  this  subject  may  be,  it  is  perhaps  not 
likely  that  the  legislature  will  make  very  much  progress  in 
retaliation  by  this  methqd  so  long  as  the  constitutional  codes 
are  submitted  to  the  people  and  have  the  added  force  of  the 
endorsement  of  a  body  from  which  all  the  agents  of  govern- 
ment derive  their  just  powers.44  A  most  interesting  and  a 
very  recent  case  in  point  is  afforded  by  Louisiana.  In  1896 
the  legislature  of  that  State  passed  an  act  submitting  to  the 
people  the  question  as  to  whether  or  not  a  convention  should 
be  called  to  revise  the  Constitution.  If  the  proposition  were 
approved,  as  it  was  approved,  by  popular  vote,  the  convention 
was  to  meet  in  1898,  but  it  was  to  be  subject  to  seven  sepa- 
rate and  important  limitations.  The  convention  was  pro- 
hibited— 

48  Cf.  Jameson,  op.  cit.,  p.  375. 

44  For  a  full  review  of  this  subject  see  Jameson,  pp.  362  et  seq. 


92  THE  REFERENDUM  IN  AMERICA 

1 i )  From   impairing   "  the   bonded   indebtedness   of   the 
State  or  of  any  parochial,  municipal,  levee  or  other  political 
corporation  "  without  first  securing  the  consent  of  the  holders 
of  the  securities  representing  this  debt. 

(2)  From  increasing  the  rate  of  taxation  above  the  limits 
set  in  the  old  Constitution  for  any  other  purpose  than  to  ex- 
tend local  assistance  to  public  schools,  and  to  aid  in  executing 
public  improvements,  and  then  only  with  the  approval  of  the 
property  taxpayers  affected  by  such  increase. 

(3)  From  changing  the  levee  system  as  it  was  then  organ- 
ized under  the  terms  of  the  old  Constitution  and  of  statutory 
provisions  enacted  in  pursuance  thereof. 

(4)  From  reducing  or  shortening  the  terms  of  office  of 
the  members  of  the  legislature  or  of  State  or  local  officers, 
whether  elected  or  appointed,  or  from  reducing  their  respec- 
tive salaries  prior  to  April,  1900. 

(5)  From  making  the  offices  of  the  chief  justice,  or  the  as- 
sociate justices,  of  the  Supreme  Court  of  the  State  elective, 
and  from  shortening  the  term  of  office  or  reducing  the  salaries 
of  the  incumbents. 

(6)  From  legalizing  lotteries. 

(7)  From  removing  the  capital  of  the  State  from  its  pres- 
ent site  at  Baton  Rouge. 

The  legislature  in  order  to  make  its  position  secure  re- 
quired, furthermore,  that  each  delegate  to  the  Convention  be- 
fore he  should  be  qualified  to  act  as  a  member  of  the  body 
should  take  the  following  oath  before  the  chief  justice  or  pre- 
I  siding  associate  justice  of  the  Supreme  Court :  "  I  hereby 
-  solemnly  swear  that  I  will  well  and  faithfully  perform  all  my 
duties  as  a  member  of  this  Convention  and  that  I  will  observe 
and  obey  the  limitations  of  authority  contained  in  the  act 
under  which  this  Convention  is  assembled."  By  such  a 
method  the  Louisiana  Convention  was  bound  beyond  all 
power  to  loose  itself,  and  the  act  is  entitled  to  rank  as  one  of 
the  most  important  counter-movements  against  the  conven- 
tion's usurpations  which  any  legislature  has  ever  organized 
and  led.45 

45  Acts  of  Louisiana,  1896,  pp.  85-87. 


.v' 


THE  CONVENTION  AND  THE  LEGISLATURE        93 

The  legislature  of  Rhode  Island  lately  employed  still  an- 
other plan,  bold  in  conception,  though  as  it  has  developed 
quite  barren  of  result.  Instead  of  calling  a  new  convention 
to  revise  the  Constitution,  the  legislature  passed  a  resolution 
in  i897,46  in  response  to  what  was  described  as  "  a  widespread 
feeling  among  the  people  of  the  State  that  the  Constitution 
should  be  carefully  and  thoroughly  revised  ".  The  legisla- 
ture thereupon  authorized  the  governor  to  appoint  a  commis- 
sion of  fifteen  persons  whose  duty  it  should  be  to  report  to  the 
General  Assembly.  The  revised  Constitution  was  then  to  be 
treated  as  if  it  were  a  separate  and  single  amendment,  and 
adopted  by  the  method  prescribed  in  the  old  Constitution.  It 
must  be  approved  by  a  majority  of  the  members  of  two  suc- 
cessive legislatures  and  be  assented  to  later  on  in  a  refer- 
endum by  three-fifths  of  the  electors  of  the  State,  present  and 
voting  on  the  proposition  in  the  town  meetings.  The  legis- 
lature by  this  means  retained  its  full  authority  over  the  sub- 
ject. The  commission  was  appointed.  It  met  and  framed 
the  "  Amendment  "  which  was  an  entire  new  Constitution  in- 
cluding a  "  Bill  of  Rights  ".  The  "  Amendment  "  was  then 
submitted  to  the  legislature  which  received  the  commission's 
report  as  if  it  had  been  the  report  of  one  of  its  regular  legis- 
lative committees,  though  no  very  material  alterations  seem 
to  have  been  made  in  the  draft,  and  it  was  passed  by  the  Gen- 
eral Assembly  first  in  March,  iSgS,47  and  again  in  June, 
i898.48  In  November  of  that  year  it  was  submitted  to  the 
people  of  the  various  towns  and  cities,  but  it  failed  to  receive 
the  necessary  three-fifths  vote.  The  method  of  framing  the 
Constitution  by  a  commission  instead  of  by  a  convention  was 
regarded  by  many  persons  as  very  irregular.  The  total  vote 
upon  the  subject  throughout  the  State  was  only  about  31,000 
(17,589  for  and  13483  against),  the  vote  of  the  State  in  the 
presidential  election  in  1896  having  been  nearly  55,ooo.49 

48  Laws  of   Rhode  Island,   January  session,    1897,  P-    12I« 

47  Laws  of  the  January  session,   1898,  pp.   133-54. 

48  Laws   of  the   May   session,    1898,  pp.    12-34. 

49  Such  a  result  led  the  Providence  Journal  to  remark :   "  The  thou- 
sands who  went  to  the  polls  but  failed  to  vote  either  for  or  against  the 


94  THE  REFERENDUM  IN  AMERICA 

The  method  of  amending  constitutions,  or  indeed  of  adopting 
entirely  new  instruments  of  government  through  the  aid  of 
commissions,  by  which  means  the  legislatures  manage  to  keep 
this  power  in  their  own  hands  without  resort  to  a  convention, 
has  had  other  applications  from  time  to  time  in  this  country, 
as  in  New  York  in  1872,  Michigan  in  1873,  Maine  in  1875 
and  New  Jersey  in  1881.  All  these  attempts  to  alter  the 
American  practice  by  subterfuge,  however,  have  proved 
more  or  less  abortive.50 

One  point  more  is  deserving  of  mention  before  we  pass 
from  the  discussion  of  this  phase  of  the  subject.  As  the  con- 
stitutions increase  in  bulk  and  are  swelled  out  with  the  details 
of  legislation,  ceasing  to  be  the  guides  to  those  who  are  to 
make  the  law  and  becoming  the  law  itself,  they  are  little  better 
qualified  to  have  a  permanency  and  to  claim  thorough  consid- 
eration and  respect  than  is  the  work  of  the  legislature.  If  the 
constitution  expresses  the  changeful  whims  of  society  and 
supersedes  the  legislature,  in  a  certain  measure,  in  respect  of 
many  different  classes  of  subjects,  we  must  expect  those  very 
results  which  have  lately  been  realized,  i.  e.,  an  increasing 
number  of  conventions  and  frequent  revisions  of  the  "  organic 
law  ".  This  development  has  gone  forward  despite  an  earlier 
belief  that  the  tendency  would  be  in  a  contrary  direction.  In 
opposing  a  provision  which  should  define  a  method  of  calling 
together  a  future  convention,  Daniel  Webster  in  the  Massa- 
chusetts Convention  of  1820  said,  that  "  with  the  experience 
which  we  had  had  of  the  Constitution  there  was  little  prob- 
ability that  after  the  amendments  which  should  now  be 
adopted  there  would  be  any  occasion  for  great  changes.  No 
revision  of  its  general  principles  would  be  necessary  and  the 
alterations  which  should  be  called  for  by  a  change  of  circum- 
stances would  be  limited  and  specific  ".51  Judge  Jameson 
adds  upon  this  point :  "  Doubtless  as  our  Constitutions  be- 
come riper  and  more  perfect  [ !]  with  time  and  experience 

Constitution  should  now  study  public  questions  enough  to  have  some 
convictions  upon  them." 

50  Cf.  Jameson,  op.  cit.,  pp.  570  et  seq. 

51  Debates  of  the  Massachusetts  Convention,   1821,  p.  413. 


THE  CONVENTION  AND  THE  LEGISLATURE        95 

the  necessity  of  employing  the  more  expensive  mode  [of 
amendment]  by  conventions  will  be  found  to  be  less  and 
less  ",52  These  predictions  to-day  seem  a  long  way  from 
realization.  We  know  now  that  they  were  false  prophecies 
in  every  sense. 

As  society  moves  backward  and  forward  and  the  needs  of 
the  people  change,  their  laws,  too,  must  change,  and  even  if 
these  are  incorporated  in  codes  more  or  less  secure  from  the 
hand  of  the  repealer  they  will  not  be  guaranteed  the  life  of  a 
constitution  which  is  only  an  outline  for  the  organization  and 
conduct  of  a  government.  Another  convention  will  soon 
need  to  be  called  or  other  steps  must  be  taken  to  revise  or 
amend  it.53 

The  States  are  now  calling  conventions  at  much  more  fre- 
quent intervals  than  was  the  case  at  a  former  time.  Although 
we  still  have  Massachusetts  as  a  notable  instance  of  a  com- 
monwealth walking  in  the  old  ways,  resisting  these  modern- 
izing influences  in  favor  of  greater  power  to  the  convention 
and  therefore  a  shorter  life  to  the  constitution,  there  are  few 
others  like  her  in  the  Union  of  States.  Pennsylvania  has 
already  had  four  Constitutions,  Virginia  four.  Illinois  has 
had  three  Constitutions  since  the  State  entered  the  Union  in 
1820,  Texas  three,  since  the  annexation  in  1845,  Missouri 
three,  including  the  first  Constitution  in  1820,  Georgia  six. 
Louisiana,  beginning  with  1812  and  ending  with  1898,  has 
had  seven  Constitutions;  Mississippi  has  had  four  since  the 
State's  history  began  in  1817.  When  there  are  no  unusual 
influences  at  work,  as  those  which  unfortunately  prevailed 
in  the  South  during  the  Secession  period,  a  constitution 
seems  to  be  good  for  about  twenty  or  thirty  years  which  is 
a  maximum  of  life  even  when  the  legislature  exerts  itself  at 
almost  every  session  to  prepare  amendments  and  thus  alter 
the  constitution  upon  its  own  initiative  without  calling  a  con- 
vention, a  process  of  which  more  is  to  be  said  in  another 

52  Op.  dt.,  p.  552. 

53  Cf.  Lowell,  Governments  and  Parties  in  Continental  Europe,  Vol.  II, 
P-  293. 


96  THE  REFERENDUM  IN  AMERICA 

chapter.  Nothing  could  be  more  natural  than  frequent  con- 
ventions with  new  constitutions  every  few  years  when  the 
framers  undertake  to  make  them  the  repositories  of  large 
classes  of  private  and  administrative  law.  Since  and  in- 
cluding the  year  1890  the  constitutional  law  of  this  country 
has  been  enriched  by  conventions  in  seven  States :  Missis- 
sippi, Kentucky,  South  Carolina,  Delaware,  Louisiana,  Utah 
(a  new  State)  and  New  York  (in  the  latter  State  the  conven- 
tion amending  the  old,  instead  of  adopting  an  entirely  new 
constitution). 

We  have  therefore  advanced  to  that  point  when  we  take  not 
only  our  constitutional  law,  but  much  also  of  our  ordinary 
law,  in  the  States  from  assemblies  of  a  single  chamber.  They 
are  on  this  account  liable  to  every  objection  which  can  be 
urged  against  single  legislative  assemblies  of  any  other  kind.54 
Certainly  there  can  be  no  doubt  as  to  the  general  view  which 
it  seems  proper  for  us  to  entertain  regarding  such  bodies,  and 
yet  the  situation  in  practice  has  come  to  be  so  extraordinary 
that  the  friends  of  good  government  in  this  country  feel  con- 
strained to  defend  the  convention  in  the  face  of  all  its  usurpa- 
tions. This  is  chiefly  because  of  the  higher  standards  that 
we,  up  to  this  time,  have  been  able  to  secure  in  respect  of  the 
membership  of  these  assemblies.  The  legislatures  of  the 
States  are  filled  with  men  who,  with  the  rarest  exceptions,  are 
of  mediocre  ability.  It  is  fortunate,  if  they  are  not  actually 
dishonest  and  corrupt.  They  have  been  tried  and  have  been 
found  wanting.  In  those  States  where  they  still  retain  a  full 
quota  of  power,  holding  annual  sessions  and  enacting  each 
year  a  thick  volume  filled  with  special  and  private  acts,  undi- 
gested, confusing  and  contradictory,  often  one  week  repealing 
in  whole  or  in  part  a  measure  which  had  been  passed  the  week 
before,  there  can  be  no  respect  and  little  toleration  manifested 
for  the  legislators.  They  were  deprived  of  their  power  be- 

84  Jameson,  op.  cit.,  p.  357.  "It  [the  convention]  is  liable  to  the  ob- 
jection so  fatal  to  single  legislative  assemblies  that  it  is  prone  to  hasty 
and  passionate  determinations  and  is  therefore  a  ready  instrument  of 
faction  and  revolution."  Cf.  ibid.,  p.  415;  also  Lecky,  Democracy  and 
Liberty,  Vol.  I,  pp.  363-64- 


THE  CONVENTION  AND  THE  LEGISLATURE       97 

cause  they  were  not  careful  about  the  exercise  of  it.  If  they 
use  their  office  as  an  opportunity  not  only  to  display  their  ig- 
norance, but  also  to  indulge  their  immoral  lust  for  personal 
gain,  making  the  legislature  an  agency  for  the  dishonest  dis- 
bursement of  public  funds,  for  blackmail,  log-rolling,  trading, 
dickering,  "  jamming  "  and  the  other  operations  which  are  the 
disgraceful  outgrowths  of  our  political  system  in  the  various 
States,  we  are  certainly  justified  in  grasping  at  almost  any 
new  agency  that  promises  us  a  hope  of  betterment.  If  de- 
mocracy by  natural  process  could  not  purge  itself  of  such 
abominations  then  some  other  means  had  to  be  found  to  gain 
this  necessary  end. 

The  conventions,  chosen  more  rarely  and  for  a  rather  un- 
usual purpose,  have  up  to  this  time  been  kept  comparatively 
free  from  those  who  are  "  party  men  "  in  the  bad  sense,  poli- 
ticians who  are  seeking  personal  profit.  Such  men  wish 
for  the  most  part  to  escape  the  labor  which  is  supposed 
to  attend  the  framing  of  a  constitution.  Should  they  be 
elected  to  membership  in  the  body  it  would  be  a  fleeting 
"  honor  ".  Another  convention  might  not  meet  for  twenty 
years.  An  older  idea,  therefore,  that  our  public  men  should 
have  superior  qualifications,  that  they  should  be  chosen  as 
some  of  our  earlier  constitutional  writers  expressed  the 
thought  from  among  "  the  wisest  and  best  ",  still  prevails 
when  members  of  a  constitutional  convention  are  to  be  elected. 
Our  ablest  lawyers  seem  not  to  be  averse  to  accepting  mem- 
bership in  the  conventions,  and  those  who  are  usually  not 
called  upon  to  serve  the  State  in  any  other  capacity  are  not 
uncommonly  selected  to  perform  this  important  public  task. 
Upon  the  subject  of  the  contrasts  in  the  personnel  of  the  two 
assemblies,  an  average  legislature  and  a  convention,  Judge 
Jameson  expresses  a  truth  which  no  one  acquainted  with  the 
facts  will  dispute,  when  he  says :  "  If  a  man  shows  himself 
by  culture  and  the  breadth  of  his  views  to  be  fitted  for  the 
highest  trusts  it  is  nearly  certain  that  he  will  not  be  found  in 
the  legislature,  but  be  left  in  obscurity  at  home.  But  when 
a  convention  is  called  it  is  sometimes  possible  to  secure  the  re- 


98  THE  REFERENDUM  IN  AMERICA 

turn  of  such  men.  It  is  not  necessarily  because  such  a  body 
is  recognized  to  be,  as  it  is,  the  most  important  ever  assem- 
bled in  a  State,  but  because  the  measures  it  is  expected  to  ma- 
ture bear  less  directly  on  the  interests  of  parties  or  of  indi- 
viduals. Party  management,  therefore,  is  not  usually  so 
much  directed  to  the  seeking  of  control  of  a  convention  as  of 
a  legislature  ",55  The  same  facts  have  been  observed  and 
remarked  upon  by  Mr.  Bryce,56  and  no  better  evidence  of  the 
difference  in  personal  standards  prevailing  in  respect  of  the 
two  kinds  of  bodies  is  afforded  than  in  the  case  of  the  great 
State  of  New  York.  For  its  Constitutional  Convention  of 
1894  there  were  secured  the  services  of  men  who  would  not 
have  been  found  in  the  legislature, — if  they  had  themselves 
desired  seats  in  that  body  they  could  not  have  got  elected. 
The  influence  of  members  drawn  from  this  superior  class  in 
the  State  was  of  course  reflected  in  the  proceedings  and  de- 
bates of  the  assembly  which  left  behind  it  a  record  for  honesty 
and  zeal  for  the  public  welfare  in  singular  contrast  with  that 
of  any  recent  session  of  the  State  legislature. 

55  Jameson,  op  tit.,  p.  561. 

56  Op.  cit.,  Vol.  I,  p.  475 ;  cf.  Godkin,  Unforeseen  Tendencies  of  De- 
mocracy, pp.  141  et  seq. 


CHAPTER  IV 

THE  REFERENDUM  ON  ENTIRE  CONSTITUTIONS 

A  CONSIDERATION  of  all  the  facts  in  regard  to  the  consti- 
tutional convention  in  this  country,  and  the  relations  which  in 
the  later  years  of  our  political  history  have  been  established 
between  it  and  the  legislature,  brings  us  to  certain  definite  re- 
sults. There  is  incontestably  a  tendency  in  the  direction  of  an 
enlargement  of  the  powers  of  the  convention, — in  the  direc- 
tion of  a  long  constitution  containing  minute  details  with  re- 
spect to  subjects  which,  rightly  viewed,  do  not  belong  within 
the  sphere  of  constitutional  law  at  all.  These  long  constitu- 
tions, framed  to  meet  temporary  conditions,  giving  expression 
to  passing  ideas  upon  specific  matters  in  specific  terms,  in  the 
nature  of  the  case,  must  be  more  flexible.  They  must  be  fre- 
quently changed  and  amended.  The  average  lifetime  of  a 
constitution  seems  to  be  little  more  than  twenty  years  when  a 
new  convention  meets  and  another  long  code  is  adopted. 
Thus,  in  spite  of  ourselves,  we  have  handed  over  to  a  single 
house  of  legislature  very  extensive  law  making  powers,  put- 
ting greater  faith  in  one  assembly  because  its  members,  as  a 
rule,  are  men  of  superior  talent,  knowledge  and  moral  char- 
acter, than  in  two  houses  and  a  Governor,  who  used  to  be  our 
law-givers  over  a  wider  field  and  of  whose  ability  and  honor 
in  the  public  service  democracy  has  seemed  to  provide  us  with 
no  practical  guaranty. 

Upon  this  single  house  there  is  but  one  important  check  and 
that  is  applied  by  the  people  themselves,  i.  e.,  by  the  electors, 
coincident  in  number  in  most  of  the  States  with  all  the  male 
citizens,  without  regard  to  race  or  color,  who  are  above  a  cer- 
tain prescribed  age  and  possess  various  qualifications  as  to 
residence,  etc.,  and  in  an  occasional  State  as  to  education.  In 

99 


ioo  THE  REFERENDUM  IN  AMERICA 

a  few  States,  the  number  of  which  would  seem  to  be  increas- 
ing, the  electoral  body  has  even  come  to  include  women  who 
are  admitted  to  the  suffrage  on  the  same  liberal  terms  as  men. 
They,  the  whole  body  of  electors  in  the  State,  as  a  kind  of 
second  chamber  are  to  pass  upon  such  legislation  as  the  con- 
vention prepares  and  submits  to  them.  They  may  accept  it 
or  reject  it  as  they  please.  It  is  only  by  a  consideration  of 
the  true  character  of  the  State  constitutions,  stuffed  out  as 
they  are  with  ordinary  statute  law,  that  one  can  form  any 
proper  estimate  of  the  value  and  importance  of  the  privilege 
which  the  people  now  enjoy. 

In  recent  years  attention  has  often  been  directed  to  the 
custom  that  prevails  in  Switzerland  of  submitting  laws  to  pop- 
ular vote.  We  are  recommended  to  introduce  the  system  in 
this  country  and  the  referendum,  as  it  is  called  (through 
measures  having  been  passed  a  long  time  ago  in  Switzerland 
ad  referendum,  as  treaties  are  sometimes  passed  and  contracts 
are  not  infrequently  made,  i.  e.,  subject  to  the  approval  of  the 
principals  in  the  transaction)  has  many  friends  among  us. 
In  Switzerland  the  people  as  a  whole  were  regarded  as  the 
principals,  the  members  of  the  legislature  being  merely  their 
delegates,  and  the  law  which  the  latter  proposed,  to  be  valid, 
had  to  be  ratified  by  popular  vote.  The  fact  is,  or,  up  to  a 
recent  time,  was,  commonly  overlooked  that  the  referendum 
is  no  strange  feature  in  our  system.  It  comes  down  to  us  as 
a  result  of  a  development  extending  through  a  very  great 
many  years. 

In  respect  of  constitutions  the  referendum  made  its  appear- 
ance in  America  in  a  very  natural  way.  No  one  seems  to 
have  stopped  to  discuss  the  reasons  for  it.  It  appears  to  have 
occurred  to  no  one  of  all  our  leading  democrats  of  the  Revo- 
lutionary period,  not  even  Franklin  or  Paine  or  any  of  the  rest 
of  the  ostentatious  friends  of  the  people  in  Pennsylvania,  that 
a  constitution  to  be  valid  would  needs  be  submitted  to  popular 
vote.  There  were  some  demands  of  course  that  a  referendum 
should  be  taken  in  that  State,  the  Anti-Constitutionalists, 
while  the  long  contest  with  their  opponents  was  in  progress, 


ON  ENTIRE  CONSTITUTIONS  101 

having  repeatedly  urged  that,  since  the  people  had  not  ap- 
proved the  Constitution  of  1776,  its  promulgation  as  the 
organic  law  of  Pennsylvania  was  an  irregular,  if  not  an  il- 
legal act.  But  as  Judge  Jameson  somewhere  observes  in  ex- 
planation of  the  fact  that  so  few  of  the  early  constitutions  in 
this  country  were  submitted  to  popular  vote,  there  was  need 
of  speedy  action  in  nearly  all  the  States  since  the  Tories  were 
active  everywhere ;  and  Pennsylvania  is  an  instance  in  point, 
for  the  first  Constitution  of  that  State  was  adopted  amid  very 
great  political  excitement.  Delay  would  have  been  held  to 
be  dangerous  and  even  fatal  to  the  future  of  the  Common- 
wealth and  the  entire  American  cause. 

Immediately  after  the  Constitution  had  been  adopted,  at  the 
meeting  of  protest  in  the  State  House  yard  in  Philadelphia, 
October  21,  I776,1  it  was  asserted  that  the  right  of  the  people 
to  be  consulted  concerning-  the  form  of  government  under 
which  they  were  to  live  had  been  violated.  Although  a  few 
copies  of  the  Constitution  had  been  printed,  time  was  not  al- 
lowed for  them  to  circulate.  The  people  had  not  considered 
the  subject  and  had  not  made  their  wishes  known  to  the  mem- 
bers of  the  Convention.  The  "  Right  of  Petition  "  had  been 
freely  used  during  the  colonial  period,  and  it  was  employed 
by  both  parties  so  soon  as  the  Pennsylvania  State  government 
was  organized.  The  step,  then,  from  the  petition,  the  me- 
morial, and  the  remonstrance,  was  not  far  to  the  referendum 
itself. 

The  Supreme  Executive  Council  in  1777  had  recommended 
that  "  the  sense  of  the  majority  of  the  electors  throughout  the 
counties  "  should  be  taken  on  the  question  of  calling  a  new 
convention.  The  Assembly  authorized  the  vote,  but  serious 
military  operations  intervened  and  it  was  not  until  Novem- 
ber, 1778,  that  it  could  again  set  a  date  for  the  elec- 
tion. Every  effort  was  then  put  forth  by  the  Constitu- 
tionalists to  bring  it  to  the  point  of  rescinding  its  action,  which 
it  did  as  a  result  of  the  representations  made  to  the  members 
by  petition  and  otherwise  in  February,  1779.  "  Those  states 

1  Cf .  Resolutions  in  Pennsylvania  Gazette,  Oct.  23,  1776. 


IO2 


THE  REFERENDUM  IN  AMERICA 


only  can  be  denominated  free  which  are  governed  under  a 
constitution  to  which  the  citizens  have  given  their  consent ", 
the  Republican  Society  declared  in  their  Address  to  the  people 
in  I779.2  Another  writer  who  took  a  part  in  the  constitu- 
tional discussions  in  Pennsylvania  at  this  time  said  that  "  this 
great  matter  must  come  to  the  voice  of  the  people  before 
Pennsylvania  can  enjoy  any  degree  of  domestic  happiness  ".8 
And  once  more  in  1789,  when  the  vote  still  had  not  been  taken, 
though  the  constitutional  struggle  within  the  State  was  near 
its  end,  certain  memorialists  declared  "  that  the  power  of  alter- 
ing the  Constitution  resides  wholly  in  the  people  and  that 
they  have  a  right  to  exercise  that  power  in  any  way  and  at 
any  time  they  may  judge  proper  ". 

It  had  been  asserted  on  July  4,  1776,  by  the  framers  of  the 
Declaration  of  Independence  that  governments  derived  "  their 
just  powers  from  the  consent  of  the  governed  ",  that  when 
certain  popular  rights  were  infringed  upon  it  was  "  the  right 
of  the  people  to  alter  or  abolish  "  their  form  of  government 
and  to  institute  another  in  its  stead.  There  were  few,  how- 
ever, who  went  so  far  as  to  say  that  the  people  themselves, 
voting  yea  or  nay,  should  determine  whether  one  constitu- 
tion should  be  adopted  or  another.  The  influence  of  the  peo- 
ple as  it  would  be  exerted  through  their  deputies  and  repre- 
sentatives was  expected  to  answer  every  need.  The  Anti- 
Constitutionalists  in  Pennsylvania,  like  the  plebiscitary  lead- 
ers to-day  in  France,  were  the  advocates  of  a  referendum  as 
a  means  of  attaining  their  end, — the  overthrow  of  the  govern- 
ment. The  opposite  party,  doubtless,  would  have  been  quite 
as  eager  for  a  direct  vote  of  the  people  on  this  subject  if  the 
proceeding  had  promised  them  any  gain.  When  the  Consti- 
tution was  finally  to  be  superseded  in  1789-90  the  Assembly, 
fortunately,  was  strong  enough  in  itself  to  issue  a  definitive 
call  for  a  convention  without  referring  the  subject  to  the  peo- 
ple, and  the  convention  having  met  and  established  the  form 
of  government  agreeable  to  the  views  of  a  majority  of  its 

2  Pennsylvania  Packet,  March  25,  1779. 
8  Ibid.,  February  13,  1779. 


ON  ENTIRE  CONSTITUTIONS  ™3 

members,  it  in  turn  was  glad  to  be  free  of  any  obligation  to 
pass  the  thing  back  to  the  people  again. 

It  is  Massachusetts  that  affords  the  first  example  of  the 
actual  application  of  the  referendum  in  this  country  in  the 
case  of  a  State  constitution.  In  1776  the  Assembly  in  Massa- 
chusetts took  steps  preliminary  to  the  establishment  of  a  new 
form  of  government,  though  it  was  not  until  May  5,  1777, 
that  a  resolution  was  passed  recommending  it  to  the  people  at 
the  next  election  for  members  of  the  Assembly  or  General 
Court  "  to  make  choice  of  men  in  whose  integrity  and  ability 
they  can  place  the  greatest  confidence,  and,  in  addition  to  the 
common  and  ordinary  powers  of  representation,  instruct  them 
with  full  powers  in  one  body  with  the  Council  to  form  such  a 
constitution  of  government  as  they  shall  judge  best  calcu- 
lated to  promote  the  happiness  of  this  State  ".  It  was  speci- 
fied in  the  same  resolution  that  when  the  constitution  had 
been  framed  copies  of  it  should  be  printed  and  presented  to 
the  people  of  the  towns,  who  should  vote  upon  it.  If  it  were 
accepted  by  two-thirds  of  those  present  and  voting  in  the 
meetings  on  the  subject  it  was  to  become  the  valid  constitu-, 
tion  of  the  State.4 

The  General  Court  or  legislature,  in  this  manner  chosen, 
adopted  a  constitution,  as  it  was  planned  that  it  should  do,  on 
February  28,  1778,  and  it  was  submitted  to  the  people  later  in 
the  year,  though  for  the  reason  that  it  was  framed  by  the 
Assembly  rather  than  by  a  convention  which  had  been  spec- 
ially elected  by  the  people  for  this  particular  task,  because  it 
lacked  a  Bill  of  Rights  and  on  other  accounts,  it  was  rejected 
by  a  large  majority — five  to  one  of  the  votes  cast  being 
against  it,  while  many  of  the  towns  it  seems  made  no  returns 

*  Journal  of  the  Convention  which  framed  the  Massachusetts  Con- 
stitution of  1780,  Boston,  1832,  p.  255.  The  text  of  the  Constitution  of 
1778  is  contained  in  the  above  volume.  It  will  be  found  valuable  for 
comparison  with  the  instrument  which  was  finally  adopted.  Cf.  Journal 
of  Debates  and  Proceedings  in  the  Convention  of  Delegates  chosen 
to  revise  the  Constitution  of  Massachusetts  begun  and  holden  at  Boston, 
November  15,  1820.  See  "Note"  on  the  Origin  and  History  of  the 
Constitution;  Hale's  New  Edition,  Boston,  1853. 


164  THE  REFERENDUM  IN  AMERICA 

at  all.5  On  February  19,  1779,  the  Assembly  returned  to  the 
subject.  A  "  resolve  "  was  passed,  this  time  for  taking  the 
sense  of  the  people  regarding  the  expediency  of  calling  a  con- 
vention to  propose  a  new  constitution.  The  members  of  the 
legislature  declared  that  they  were  unable  to  determine  "  from 
the  representations  made  to  this  Court  what  are  the  senti- 
ments of  the  major  part  of  the  good  people  of  this  State  ", 
since  the  earlier  Constitution  had  been  disapproved  of,  and 
therefore  asked  the  inhabitants  to  make  known  their  views 
on  the  point.6 

The  vote  having  been  taken  and  "  a  large  majority  of  the 
inhabitants  "  of  the  towns  making  returns — more  than  two- 
thirds  of  the  whole  number — having  approved  of  a  new  gov- 
ernment and  being  "  of  opinion  that  the  same  ought  to  be 
formed  by  a  convention  of  delegates  who  should  be  specially 
authorized  to  meet  for  this  purpose  ",7  the  Assembly  there- 
upon resolved  (June  17,  1779)  to  recommend  the  people  to 
require  their  delegates,  when  the  constitution  was  framed  and 
before  it  should  be  adopted,  to  submit  the  work  of  the  conven- 
tion to  popular  vote.  It  was  provided  that  copies  of  the  con- 
stitution should  be  laid  before  "  the  respective  towns  and  plan- 
tations at  a  regular  meeting  of  the  male  inhabitants  thereof, 
being  free  and  twenty-one  years  of  age,  to  be  called  for  that 
purpose,  in  order  to  its  being  duly  considered  and  approved 
or  disapproved  by  said  towns  and  plantations  ".  And  the 
resolution  further  recommended  the  several  towns  within  the 
State,  "  to  instruct  their  respective  representatives  to  estab- 
lish the  said  form  of  a  constitution  as  the  constitution  and 
form  of  government  of  the  State  of  Massachusetts  Bay,  if 
upon  a  fair  examination  it  shall  appear,  that  it  is  approved  of 
by  at  least  two-thirds  of  those  who  are  free  and  twenty-one 
years  of  age,  belonging  to  this  State  and  present  in  the  sev- 
eral meetings  ". 

5 "  Note  "  on  Origin  and  History  of  the  Constitution,  loc,  cit.    Cf.  Life 
and  Works  of  John  Adams,  Vol.  IV,  pp.  213  et  seq. 
*  Journal  of  the  Convention  of  1779-80,  p.   189. 
1  Ibid.,  p.  5. 


ON  ENTIRE  CONSTITUTIONS  105 

This  was  the  Constitution  which  was  framed  by  John 
Adams,  and  which  is  still  to-day  in  all  its  essential  parts  the 
organic  law  of  the  State  of  Massachusetts.  It  was  referred 
to  the  people  in  their  town  meetings  in  the  manner  contem- 
plated by  the  legislature,8  whereupon  the  Convention  took  a 
recess  charging  a  committee  of  its  members  to  print  the 
Constitution  and  to  distribute  the  "  books  "  throughout  the 
State  by  means  of  "  three  expresses  "  employed  at  the  public 
expense.  The  Constitution  having  been  approved  by  two- 
thirds  of  those  assembled  in  the  town  meetings  and  voting 
upoft  this  subject,  it  became  the  law  of  the  Commonwealth. 

There  were  here,  it  is  interesting  to  note,  the  two  referenda, 
one  following  the  other :  First,  a  vote  to  determine  whether 
the  convention  should  be  called  or  not ;  and  second,  when  it 
had  been  called  and  its  work  had  been  finished,  a  vote  to  de- 
cide if  the  constitution  were  acceptable  to  the  people,  the 
identical  process  with  which  we  have  now  become  familiar  in 
nearly  all  the  American  States. 

New  Hampshire,  a  State  which  has  always  drawn  very  lib- 
erally upon  the  experience  of  Massachusetts  in  the  field  of 
public  as  well  as  private  law,  likewise  furnishes  an  early  in- 
stance of  the  use  of  the  referendum  on  a  constitution.  The  first 
constitution  adopted  in  any  of  the  American  States  after  the 
separation  from  England  is  the  New  Hampshire  Constitution 
of  1775-76,  which  was  framed  and  promulgated  by  a  conven- 
tion, or  "  Congress  ",  that  met  at  Exeter,  December  2,  1775, 
and  completed  its  labors  in  the  following  January.  This 
Congress,  as  it  was  authorized  to  do,  assumed  to  itself  the 
"  name,  power  and  authority  of  a  house  of  representatives  or 
assembly  for  the  Colony  of  New  Hampshire  ".9  The  Con- 
stitution, which  is  very  brief,  provided  for  a  second  branch  of 
legislature  or  Council,  but  neglected  to  arrange  for  a 
Governor,  or  indeed  any  officer  or  officers  charged  specifically 
with  the  task  of  executing  the  laws  and  directing  the  govern- 
ment. A  "  Committee  of  Safety  ",  a  kind  of  executive  board, 

8  Journal   of   the    Convention,   p.    168. 
9Cf.  Constitution  of  1776. 


io6  THE  REFERENDUM  IN  AMERICA 

was  organized,  and  to  it  the  executive  powers  were  entrusted 
during  intervals  when  the  legislature  was  not  sitting.  It  was, 
however,  a  source  of  much  dissatisfaction,  though  it  was 
probably  as  useful  a  feature  of  the  government  as  the  prac- 
tically headless  board  which  was  created  by  Franklin  and  his 
colleagues  in  Pennsylvania  in  the  same  year.  On  this  and 
other  grounds  the  people  of  New  Hampshire  were  urged  to 
change  this  provisional  Constitution  which  had  been  framed 
at  the  outbreak  of  the  war  merely  to  meet  a  temporary  need.10 
A  convention  of  delegates  which  had  been  chosen  for  the 
special  purpose  of  preparing  a  draft  of  a  new  constitution  for 
the  State,  met  in  1778,  completing  its  work  in  a  few  months. 
The  outline  of  government  which  had  been  framed  by  the 
Congress  at  Exeter  was  not  submitted  to  the  people,  but  the 
constitution  which  it  was  proposed  should  supersede  it  was 
"  dispersed  throughout  the  State  ",  and  the  officers  in  the 
towns  were  asked  to  "  warn  "  the  inhabitants  to  assemble  to 
consider  the  new  plan  of  government.  In  the  town  meetings, 
however,  the  constitution  was  rejected,11  and  steps  were  at 
once  taken  to  bring  together  another  convention,  though  this 
body  did  not  assemble  until  1781.  The  constitution  which  it 
prepared  was  also  referred  to  the  people,  but  it  proved  to  be 
no  more  to  the  public  taste  than  the  last  one  had  been,  though 
an  opportunity  was  extended  to  the  towns  to  propose  such 
amendments  as  it  was  thought  might  make  it  acceptable  to  the 
inhabitants.  These  amendments  were  so  numerous  that  the 
convention,  when  it  resumed  its  sessions,  did  not  succeed  in 
conciliating  the  various  interests  until  late  in  1783,  in  which 
year  the  constitution  being  again  submitted  to  the  people  was 
approved  by  them  and  the  new  government  was  inaugurated 
in  June,  I784-12 

These  two   States,   Massachusetts   and   New   Hampshire, 
were  the   only   States,   among  those   framing   constitutions 

10  Collections  of  the  New  Hampshire  Historical  Society,  Vol.  IV,  p.  162; 
cf.  Belknap,  History  of  New  Hampshire,  Boston,  1791,  p.  401. 

11  Ibid.,  p.  154- 

12  Cf.   Belknap,  op.  cit.,  p.  435. 


ON  ENTIRE  CONSTITUTIONS  107 

during  the  Revolutionary  period,  whose  conventions  referred 
their  completed  instruments  of  government  to  popular  vote; 
and  Massachusetts  seems  to  stand  alone  in  respect  of  the  sep- 
arate convention  referendum,  i.  e.,  the  preliminary  vote  to  de- 
cide whether  the  convention  should  be  called  or  not.  The 
Constitution  of  Virginia  had  early  declared  that  "  when  any 
government  shall  be  found  inadequate  or  contrary  to  these 
purposes  [the  purposes  for  which  government  is  instituted, 
enumerated  in  the  Bill  of  Rights]  a  majority  of  the  com- 
munity hath  an  indubitable,  inalienable  and  indefeasible  right 
to  reform,  alter  or  abolish  it  in  such  manner  as  shall  be  judged 
most  conducive  to  the  public  weal  ".13  This  declaration  was 
repeated  in  the  Constitution  of  Pennsylvania.14  The  Mary- 
land Convention  of  1776  announced  that  "  whenever  the  ends 
of  government  are  perverted,  and  public  liberty  manifestly 
endangered,  and  all  other  means  of  redress  are  ineffectual,  the 
people  may,  and  of  right  ought  to  reform  the  old  or  establish 
a  new  government  ",15  But  the  conventions  in  these  States 
in  no  instance  referred  the  constitutions  to  a  direct  vote  of 
the  people.  The  constitutions  were  framed  and  were  some- 
times formally  "  ratified  "  by  the  delegates  in  the  name  of,  and 
by  the  authority  of  the  people,  as  the  phrase  might  be,  but  it 
was  only  in  these  two  New  England  States,  where  the  in- 
habitants in  their  local  communities  had  long  been  accustomed 
to  direct  legislation  that  the  referendum  made  its  appearance 
as  a  part  of  our  constitutional  practice.16 

13  Constitution  of  Virginia  of  1776,  Bill  of  Rights,  sec.  3. 

14  Constitution  of  Pennsylvania  of  1776,  sec.  3. 

15  Constitution  of  Maryland  of  1776,  sec.  iv. 

18  John  Adams  contemplated  the  plebiscite  when  he  wrote  in  his 
Autobiography  that  many  questions  were  referred  to  him  in  1775  and 
1776  regarding  the  proper  form  of  government  for  a  state.  "  How 
can  the  people  institute  governments  ?  "  Mr.  Adams  was  asked.  "  By 
conventions  of  representatives  freely,  fairly  and  proportionately  chosen," 
he  answered.  "  When  the  convention  has  fabricated  a  government,  or 
a  constitution  rather,  how  do  we  know  that  the  people  will  submit 
to  it  ?  "  he  was  asked  again.  "  If  there  is  any  doubt  of  that  the  con- 
vention may  send  out  their  project  of  a  constitution  to  the  people  in 
their  several  towns,  counties  or  districts  and  the  people  may  make  the 
acceptance  of  it  their  own  act." 


io8 


THE  REFERENDUM  IN  AMERICA 


It  was  in  New  England  that  this  development  might  have 
been  expected  to  begin,  since  the  system  of  local  government 
there  was  such  as  to  give  great  encouragement  to  the  spread 
of  the  plebiscital  principle.  There  was  in  the  Puritan  Col- 
onies which  were  established  on  the  shores  of  New  England 
a  return,  in  fact,  to  Rousseau's  state  of  nature,  where  peasants 
met  under  a  forest  tree  and  deliberated  on  their  own  affairs, 
free  from  the  governmental  complications  to  which  a  per- 
verted civilization  had  reduced  mankind.  A  great  deal  has 
been  said  and  written  regarding  certain  interesting  assemblies 
of  the  people  surviving  still  in  Switzerland,  the  old  Teutonic 
folk-mote  and  other  devices  by  which  men  of  simple  needs 
have  cared  for  their  common  affairs.  It  has  been  assumed 
that  it  is  a  kind  of  Teutonic  heritage.  However  absorbing 
such  a  study  may  be,  there  is  little  enough  connection,  as  it 
seems  to  me,  between  the  New  England  town-meeting  and 
any  of  the  other  popular  assemblies  of  history.  That  one  has 
existed  is  certainly  no  explanation  for  the  existence  of  the 
other.  It  appears  to  be  the  most  natural  thing  for  men  when 
they  are  set  out  alone,  if  they  have  already  reached  a  certain 
stage  of  civilization  and  are  dependent  upon  their  own  exer- 
tions for  survival,  to  co-operate  in  order  to  gain  necessary 
ends.  The  first  stage  in  co-operation,  if  they  are  left  to  them- 
selves to  work  out  a  scheme  of  government,  is  for  them  to 
meet  together  in  assemblies  of  some  kind  where  they  may  pro- 
pose, discuss  and  vote.  This  was  the  precise  course  of  devel- 
opment in  the  New  England  colonies  the  various  proprietors 
of  lands  in  a  given  territorial  district  grouping  themselves  to- 
gether that  they  might  mutually  protect  and  advance  their 
own  interests.  The  town  indeed  was  "  a  body  of  stockholders 
assembled  in  corporate  form  ",17  and  powers  were  gradually 
and  naturally  acquired  in  reference  to  the  roads  and  highways, 
the  support  of  the  poor,  the  choice  of  local  executive  officers 
and  such  other  matters  as  were  of  common  importance  to  the 
members  of  the  group.  The  "  stockholders  "  met  together 

17  C.  F.  Adams,  Three  Episodes  of  Massachusetts  History,  Vol.  II,  p. 
817. 


ON  ENTIRE  CONSTITUTIONS  109 

at  intervals  to  determine  what  their  policy  should  be  regard- 
ing these  public,  if  somewhat  local  and  trivial  questions,  and 
as  the  settlements  became  more  populous,  as  the  holdings  in 
land  were  reduced  in  size,  and  villages,  even  cities,  resulted, 
the  town  meeting  was  retained  as  a  feature  of  the  local  po- 
litical system.  So  large  a  city  as  Boston  clung  to  this  pri- 
mary assembly  of  the  freemen  until  1822,  when  it  was  finally 
necessary  to  introduce  a  representative  legislature.  This 
characteristic  form  of  local  government,  which  for  various 
reasons  did  not  secure  a  foothold  in  the  more  southern  col- 
onies, though  it  has  since  travelled  westward  through  the 
northern  zone  of  States  with  the  New  England  settlers,18  is  a 
factor  that  every  one  who  desires  to  make  a  correct  estimate 
of  our  early  institutional  tendencies  must  keep  well  in  mind.19 

The  towns,  at  length,  having  been  joined  together,  the  af- 
fairs of  the  larger  districts,  the  colonies,  were  to  be  cared  for 
and  administered.  In  the  colonies  of  Massachusetts  and 
Plymouth  all  the  freemen  at  first  had  a  personal  voice  in  the 
transaction  of  the  public  business,20  but  this  system  soon  be- 
came inconvenient,  and  later  impossible,  so  that  deputies  had 
to  be  chosen  by  the  towns.  These  deputies  or  delegates  went 
up  to  the  capital  carrying  with  them  the  people's  proxies,  i.  e., 
the  identical  ballot  which  each  freeman  had  cast  in  the  town 
or  other  local  district  was  cast  for  him  by  the  deputy  in  the 
General  Court  or  Assembly  where  the  votes  were  counted 
and  the  totals  made  up.21  The  freeman,  coincidently  with  the 
development  of  the  proxy  system,  still  retained  the  right  of 
going  to  the  capital  in  person  and  voting  there  if  he  wished. 

For  a  time,  the  deputies  from  the  towns  seem  to  have 
passed  their  laws  ad  referendum  and  conditional  upon  the 

18  Cf.  Bryce,  op.  cit.,  pp.  600  et  seq. 

19  Cf.  John  Adams  to  the  Abbe  de  Mably,  a  French  political  moralist 
who  had  planned  to  write  concerning  American  affairs  at  the  Revolu- 
tionary time,  Adams'  Works,  Vol.  V,  p.  495  ;  Bryce,  op.  cit.,  Vol.  I,  pp. 
589  el  seq.;  De  Tocqueville,  Democracy  in  America,   Bowen's  Transla- 
tion. 3rd  ed.,  Cambridge,  1863,  pp.  73  et  seq. 

20  C.  F.  Bishop,  History  of  Elections  in  the  American  Colonies,  New 
York,  1893,  P-  4-          ^  Ibid.,  p.    127. 


no  THE  REFERENDUM  IN  AMERICA 

subsequent  approval  of  the  people.  In  Plymouth  this  was 
the  method  employed  during  a  period  in  the  seventeenth 
century  22  and  in  Rhode  Island  where  the  union  of  the  towns 
was  at  first  very  loose,  beginning  with  1647,  tne  representa- 
tive principle  was  introduced,  with  the  referendum  as  an 
auxiliary  feature  of  the  system.  Early  in  the  history  of  the 
colony  law-making  by  direct  vote  passed  through  a  number 
of  interesting  phases  of  development  in  Rhode  Island,  which 
are  quite  worthy  of  the  place  Mr.  Bishop  has  recently  given 
them  in  his  work  on  the  election  systems  prevailing  in  this 
country  in  colonial  times. 23 

There  are  then  the  best  of  reasons  for  our  deduction  in 
regard  to  the  first  New  England  constitutions.  There  was 
a  method  at  hand  in  New  England  by  which  an  expression 
of  popular  opinion  could  be  readily  and  economically  secured. 
The  people  in  their  town-meetings  had  been  made  familiar 
with  direct  legislation  respecting  their  local  concerns.  They 
knew  something  about  the  referendum  in  a  larger  class  of 
colonial  affairs.  It  was  due  to  no  reading  of  Rousseau  or 
his  literary  contemporaries,  nor  to  any  anticipation  of  our 
admiration  for  Swiss  political  forms  to-day,  that  the  early 
Constitutions  of  Massachusetts  and  New  Hampshire  were 
submitted  to  popular  vote.  In  many  of  the  more  southern 
colonies  no  ballot  system  of  any  kind  was  in  existence.24 
There  was  instead  a  poll  of  the  inhabitants.  Even  where  the 
ballot  was  known  there  were  no  town  meetings,  and  there  ex- 
isted no  fiction  that  if  the  people  did  not  actually  participate 
in  the  making  of  their  own  laws  they  at  any  rate  had  a  right 
to  do  this,  having  surrendered  the  privilege  only  rather  con- 
ditionally to  the  deputy  through  a  personal  proxy.  In  Penn- 
sylvania, for  instance,  where  the  ballot  was  a  familiar  feature 
at  all  elections  there  is  clear  proof  that  the  channels  between 
the  individual  citizens  and  the  government  were  not  kept  so 
open  as  in  New  England.  In  1777,  when  it  was  a  question 

22  Bishop,  p.   5. 

23  Ibid.,  pp.   10  et  seq. ;  cf.  Rhode  Island  Colonial  Records,  p.  149. 
*  Bishop,  p.  155- 


ON  ENTIRE  CONSTITUTIONS  m 

of  taking  the  sense  of  the  people  on  the  proposition  to  call 
a  convention  to  frame  a  new  constitution,  a  very  crude 
plan  was  evolved  by  the  Assembly.  The  people  of  each 
electoral  district  were  to  choose  a  special  officer  to  be  called 
a  "  commissioner  ".  This  commissioner  was  to  make  a  house 
to  house  poll  of  his  own  district,  asking  each  freeman  whether 
or  not  he  desired  a  convention.  The  freeman  then  must 
write  "  his  vote  or  answer  "  upon  "  a  scroll  or  piece  of  pa- 
per "  which  was  to  be  placed  in  a  "  box  or  bag  ",  kept  in 
the  possession  of  the  commissioner.25  This  was  a  most 
inconvenient  arrangement  and  it  is  suggestive  of  the  electoral 
system  in  vogue  in  some  of  the  southern  provinces,  in  Vir- 
ginia for  instance  where,  it  is  said,  officers  were  detailed  to 
go  from  one  plantation  to  another  to  collect  the  votes  of 
the  people  when  it  was  desired  to  consult  them  in  regard 
to  any  given  point  of  government.26  In  1778,  however, 
when  the  Pennsylvania  Assembly  resolved  again  to  appeal 
to  the  citizens  of  the  State  for  a  direct  expression  of  their 
opinion  on  the  convention  question,  a  much  more  modern 
method  was  proposed,  the  electors  being  invited  to  appear 
at  their  polling  places  and  to  deposit  in  the  boxes  ballots  or 
"  tickets  "  on  which  were  written  the  words  "  For  a  Con- 
vention "  or  "  Against  a  Convention ",  as  the  individual 
voter's  choice  might  be.27 

Even  this  plan,  however,  involving  as  it  did  the  use  of 
the  election  "  machinery  "  in  each  separate  district  of  the 
State,  was  far  from  simple  or  free  of  expense  and  in  the 
absence  of  the  town  meetings  in  which  the  people  of  Massa- 
chusetts and  New  Hampshire,  in  the  same  manner  that  they 
determined  upon  many  other  affairs,  voted  to  ratify,  reject 
or  amend  a  proposed  constitution,  there  was  an  influence  of 
a  positive  kind  to  deter  the  States  outside  of  New  England 
at  this  early  day  from  a  more  general  employment  of  this 
popular  principle  in  law-making. 

But  before  the  referendum  had  spread  farther  afield,  New 
Hampshire  gave  it  another  trial  in  1792,  when  the  Con- 

**  Ante,  p.  50.         28  Bishop,  op.  cit.,  p.  160.          "  Ante,  p.  51. 


H2  THE  REFERENDUM  IN  AMERICA 

stitution  which  is  with  amendments  still  in  force  to-day  in 
that  State,  was  submitted  to  popular  vote.  Connecticut 
and  Maine  in  1818  and  1819  respectively,  both  being  States 
in  which  the  town  meeting  was  a  familiar  institution,  re- 
ferred their  first  Constitutions  to  the  people.  Rhode  Island, 
another  New  England  State  which  with  Connecticut  had  still 
been  acting  under  her  old  English  charters,  followed  in  1824 
with  a  Constitution  which  the  people,  however,  refused  to 
accept.  The  first  State  outside  of  New  England  to  submit 
a  constitution  to  popular  vote  was28  New  York  in  1821, 
followed  by  Virginia  in  1829,  Georgia  in  1833,  Tennessee 
in  1834  and  North  Carolina  and  Michigan  in  1835.  From 
this  time  onward  when  the  old  States  adopted  new  consti- 
tutions they  were  submitted  to  popular  vote,  and  nearly  all 
the  new  States  admitted  to  the  Union  brought  constitu- 
tions with  them  which  had  received  the  direct  sanction  of  the 
citizens.  The  Congress  of  the  United  States  in  several  cases 
indeed,  recognized  the  principle,  in  the  "  Enabling  Acts  " 
making  it  a  pre-requisite  to  statehood  that  the  people  should 
have  assented  to  the  fundamental  charter  under  which  they 
were  to  live.29  Barring  the  constitutions  framed  by  the  rev- 
olutionary conventions  of  the  Secession  and  Reconstruction 
periods  in  the  South,  there  seems  to  have  been,  since  Florida 

28  It  is  stated  by  Poore  in  his  Note  to  the  Mississippi  Constitution  of 
1817  (Poore's  Federal  and  State  Constitutions,  p.  1054)  that  it  was  sub- 
mitted to  popular  vote.    J.  L.  Power,  Secretary  of  State  for  Mississippi, 
in  his  "  Chapters  on  State  History  "  says :  "  No  proposition  was  made  in 
the  Convention  to  submit  the  Constitution  to  a  vote  of  the  people  for  ratifi- 
cation.  It  went  into  effect  on  the  day  it  was  signed,  August  15,  1817.  The 
original  is  in  the  office  of  Secretary  of  the  State  "  (Magnolia,  Miss.,  Ga- 
zette of  Sept.  i,  1897).    Poore  also  states  that  the  Missouri  Constitution 
of  1820  was  submitted  to  popular  vote  (op.  cit.,  p.  1104).  I  am  unable  to 
confirm  this,  as  the  Secretary  of  State  writes  me  that  "  the  Capitol  of 
Missouri  was  destroyed  by  fire  in  1837  and  all  the  records  in  the  Secre- 
tary of  State's  office  at  that  time  perished  in  the  flames,  so  that  we  can 
only  go  back  to   1837  for  official  records  ".     It  appears  to  me  unlikely 
that  the   Constitution   was   referred   to   the  people   and   the    State   may 
safely  be  om'itted  from  this  list;  cf.  Jameson,  op.  cit.,  appendix,  p.  652. 

29  See  the  useful  work  by  Dr.   Max  Farrand  on  "  The  Legislation  of 
Congress  for  the  Government  of  the  Organized  Territories  of  the  United 
States,  1789-1895  "» 


ON  ENTIRE  CONSTITUTIONS  113 

pursued  the  course  in  1839,  no  instance  of  a  constitution 
being  put  into  effect  without  a  popular  vote  in  any  Amer- 
ican State  until  Mississippi  adopted  this  policy  in  1890,  be- 
ing followed  in  a  few  years  by  South  Carolina,  Delaware, 
Kentucky  (with  respect  to  certain  amendments  and  details) 
and  Louisiana.  Of  the  reasons  which  induced  these  States 
to  leave  the  beaten  pathway  of  constitutional  practice  in  this 
country  it  will  be  more  logical  to  speak  in  another  place.30 

In  by  far  the  greater  number  of  cases  the  electors  are 
twice  consulted :  First,  by  the  legislature  as  to  whether  the 
convention  shall  be  called  or  not,  of  which  more  will  be  said 
elsewhere  in  another  connection ;  and  secondly,  by  the  con- 
vention itself  when  its  labors  have  been  finished  and  its  draft  s 
of  the  constitution  is  complete.  Some  of  the  newer  consti- 
tutions are  specific  on  these  points  in  our  practice.  For  in- 
stance, in  Idaho  the  Constitution,  after  indicating  the  course 
to  be  pursued  by  the  legislature  in  calling  a  convention,  pro- 
vides that  "  any  constitution  adopted  by  such  convention  shall 
have  no  validity  until  it  has  been  submitted  to  and  adopted 
by  the  people  ".31  When  the  terms  of  the  constitution  are 
definite  and  mandatory  the  convention's  duty  in  respect  of 
submission  cannot  be  brought  into  question.  It  is  indubitable. 
The  old  constitution  continues  to  be  effective  in  all  its  parts 
until  it  is  changed  or  abolished  in  some  lawful  manner,32  and 
if  it  requires  that  a  new  constitution  shall  be  approved  by 
the  people,  this  is  a  command  which  the  convention  must 
certainly  obey.  When  the  constitution,  however,  is  silent 
regarding  submission  some  interesting  questions  arise.  In 
this  event  two  classes  of  cases  are  distinguishable :  ( I )  When 
the  legislature  in  the  "  Convention  Act "  instructs  the  con- 
vention to  submit  its  constitution  to  popular  vote,  and  (2) 

80  Infra,  pp.  120  et  seq. 

81  Constitution  of  Idaho  of   1889,  art.  xx,  sec.  4;   cf.  Constitution  of 
Montana  of   1889,  art.  xix,  sec.  8;   Constitution  of  Utah  of   1895,  art. 
xxiii.   sec.   3  ;    Constitution   of   Washington   of    1889,   art.   xxiii,   sec.   3 ; 
Constitution  of  Wyoming  of  1889,  art.  xx,  sec.  4. 

?2  £f .  Jameson,  op  cil.,  p.  492. 


H4  THE  REFERENDUM  IN  AMERICA 

when  the  convention,  being  without  instructions,  may  pr< 
sumably  consult  its  own  pleasure  on  the  point. 

Respecting  the  first  case  history  furnishes  a  great  de< 
of  precedent  so  that  the  convention's  course  should  not  be  ii 
doubt.    The  legislature  of  Massachusetts  in  1777,  and  agaii 
in   1779,  when  it  authorized  the  election  of  delegates  wh< 
should  meet  and  frame  a  constitution  for  the  State,  at 
same  time  specified  that  the  completed  constitution  shouk 
be  submitted  to  popular  vote.    The  delegates,  obedient  to  this 
command,  submitted  both  instruments  and  the  example  has 
since  been  generally  followed  throughout  the  United  States. 
All  the  constitutions  have  not  been  referred  to  the  people, 
but  there  seems  to  be  no  instance  in  which  a  constitutioi 
was  not  so  referred  when  the  legislature's  directions  to  th< 
convention  have  been  imperative.     It  is  the  accepted 
to-day,  as  we  have  noted  in  the  preceding  chapter  of  this 
book,  that  so  long  as  the  legislature  confines  its  instructions 
within  reasonable  bounds,  its  mandate  may  not  properly 
disobeyed  and  there  is  considered  to  be  no  element  of  ui 
reasonableness  in  a  request  that  the  constitution  shall  be  sul 
mitted  to  popular  vote. 

Concerning  the  second  case,  when  the  convention  is  with- 
out definite  instructions  from  any  outside  authority,  it  is  les 
easy  to  lay  down  the  rule.  Precedent  to-day,  however, 
"strongly  in  favor  of  a  submission  of  the  constitution.  Th( 
tendency  is  unmistakable  and  few  conventions  in  this  centui 
except  for  special  reasons  when  it  has  been  desired  to  gaii 
particular  ends,  as  recently  in  Mississippi,  South  Carolina  am 
Louisiana,  have  disregarded  a  law  which,  if  unwritten,  is 
scarcely  less  binding  part  of  our  political  system. 

There  is  still  another  supposable  and  indeed  actual  cas 
The  legislature  sometimes  makes  the  specific  reservation  ii 
its  "  Convention  Act "  that  the  constitution  which  the  con- 
vention frames  shall  not  be  submitted  to  the  people,  a  recei 
instance  of  this  kind  having  been  furnished  in  Louisiana 
An  act  of  the  legislature  calling  a  convention  to  meet  ii 
that  State  in  1898  distinctly  declared  that  the  constitutioi 


ON  ENTIRE  CONSTITUTIONS  115 

which  it  drafted  should  go  into  effect  without  a  vote  of  the 
people.33  If  the  legislature  can  bind  the  convention  to  submit 
a  constitution  it  might  be  inferred  that  it  could  also  bind  the 
convention  in  the  matter  of  not  submitting  a  constitution. 
Nevertheless,  it  may  not  be  quite  safe  to  go  so  far  as  this, 
either  in  our  theory  or  our  practice,  since,  were  a  great 
matter  of  public  policy  involved,  the  doctrine  might  be 
fraught  with  serious  dangers.  Especially  perilous  might  it 
become  were  we  to  dispense  not  only  with  the  referendum 
on  the  entire  constitution,  but  also  with  the  preliminary  vote 
on  the  proposition  to  call  a  convention.34  At  some  stage  in 
the  process  of  changing  the  form  of  government  the  peo- 
ple, by  the  development  of  more  than  a  century,  must  be  held 
to  have  won  the  indefeasible  right  to  a  direct  vote  upon  this 
important  subject.  We  find  an  exception  to  the  rule,  it  is 
true,  in  Mississippi  so  recently  as  in  1890.  The  present 
Constitution  of  that  State  was  adopted  in  total  disregard  of 
this  canon,  a  result  for  which  the  responsibility  was  di- 
vided. The  legislature  called  the  convention  without  asking 
the  people  whether  they  desired  a  convention  to  meet  or  not, 
and  nothing  was  said  in  the  "  Convention  Act  "  as  to  the  con- 
vention's duty  in  submitting  its  completed  constitution  to 
popular  vote.35  The  convention  when  it  met  and  finished 
its  work,  having  received  no  specific  directions  on  the  point, 
assumed  the  right  to  declare  that  the  Constitution  should  go  * 
into  effect  at  once  without  a  referendum.  This  case  we  are 
bound  to  regard  as  a  dangerous  precedent  and  one  little 
in  sympathy  with  the  spirit  of  American  practice  or  ex- 
perience. 

Since  constitutions  are  so  universally  submitted  to  popular 
vote  they,  and  the  bodies  which  frame  them,  have  come 
to  occupy  a  distinctly  different  place  in  the  American  scheme 
of  government.  "  A  State  constitution,"  says  Mr.  Bryce, 
"  is  really  nothing  but  a  law  made  directly  by  the  people 

38  Session  Laws  of  Louisiana,   1896,  pp.  85-87. 

34  Cf.  Jameson,  op.  cit.,  pp.  493-94  and  p.  529,  note, 

35  Cf.  Laws  of  Mississippi  of  1890,  p.  53. 


n6 


THE  REFERENDUM  IN  AMERICA 


voting  at  the  polls  upon  a  draft  submitted  to  them."  36   Ai 
again  the  same  writer  says  that  the  convention  is  now 
"  advisory "    rather    than    a    "  sovereign    body  ",37     Jud| 
Jameson  goes  so  far  as  to  say  that  a  convention  is  not 
body  of  representatives  at  all,  but  an  assembly  of  delegate 
who  act  as  a  legislative  committee  to  propose  laws  of  a  cei 
tain  character  to  the  citizens.38     If  this  seems  to  be  an 
treme  view  it  is  theoretically  a  quite  correct  one,  and  it 
clear  that  a  third  legislative  body  has  thus  been  introduc< 
into  the  American  practice,  yielding  us  the  legislature,  tl 
constitutional  convention  and  the  electoral  body  which 
distributed  among  their  three  selves  a  work  that  in  Englanc 
for  instance,  is  performed  by  a  single  agent,  the  legislate 
If  we,  however,  look  upon  the  convention  as  a  committee  e: 
ercising  purely  advisory  powers,  then  it  is  no  longer  a  legi< 
lative  body.     It  must  be  sifted  out  of  our  system,  in  theoi 
at  least,  while  the  citizens  en  masse  become  the  legislate 
authority,  enacting  the  constitution  and  giving  to  it  its  vitalit 
and  force.     The  delegates  to  the  convention  are  only  com- 
petent to  vote  and  resolve,  subject  to  the  approval  of  an- 
other body,  the  people  who  commissioned  them  to  their  task. 
In  the  face  of  recent  events  in  Mississippi,  South  Carolii 
Delaware,  Louisiana  and  Kentucky  it  is  possible,  howeve 
that  we  have  got  somewhat  beyond  bounds  with  our  theori( 
The  law  of  custom  in  regard  to  the  submission  of  constiti 
tions,  which  earlier  seemed  to  be  so  strong  that  it  could  nc 
be  disobeyed,  really  appears  to  be  not  so  inviolable  after  al 
since  it  has  lately  gained  more  notoriety  in  the  breach  than 
in  the  observance.     But  whatever  the  theory  no  one  should 
allow  himself  to  be  confused  for  a  moment  in  regard  to  tl 
actual  facts.     The  convention  may  be  a  legislative  body, 
only  an  advisory  legislative  committee,  but  what  practi< 
men  desire  to  know,  is  this — who  makes  the  constitutioi 
Do  the  people  make  it,  or  does  the  convention  make  it? 
not  a  few  instances,  of  course,  the  people  have  rejected  coi 

88  Op.  cit.,  p.  436.         37  Ibid.,  p.  667,  appendix. 
88  Op.  cit.,  pp.  461,  530. 


ON  ENTIRE  CONSTITUTIONS  117 

stitutions  that  were  submitted  to  them.  This  is  sometimes 
taken  to  mean  that  the  electors  have  a  knowledge  of  the  sub- 
ject superior  to  that  which  is  possessed  by  the  referring 
body.  This  conclusion  cannot  fairly  be  drawn  from  such  a 
premise.  Wisdom  or  knowledge  of  constitutional  law,  we  all 
know,  does  not  influence  the  motives,  or  control  the  actions 
of  the  great  mass  of  citizens  who  vote  to  approve  or  reject 
a  constitution.  If  a  constitution  reflects  such  qualities  no 
one  would  claim  that  the  people  by  the  mere  act  of  voting  for 
or  against  it  in  solido,  which  is  the  usual  method  of,  submis- 
sion, had  injected  anything  of  real  value  into  the  instrument. 
The  character  of  the  legislation  contained  in  one  of  these 
great  codes  of  law  is  better  or  worse  according  to  the  char- 
acter of  the  men  who  have  had  a  hand  in  framing  it.  If 
legislation  which  is  received  from  a  convention  is  more 
carefully  considered  and  more  honest  than  legislation  re- 
ceived from  a  State  legislature,  it  is  so  because  of  the  greater 
talent  and  honesty  of  the  men  appointed  to  frame  the  law. 
The  convention  is  extending  its  powers,  is  confining  the 
legislature  within  narrower  limits,  and  is  giving  form  to  our 
whole  system  of  State  and  local  government  to  an  extent 
never  known  before  because  of  the  direct  personal  efforts  to 
that  end  by  the  men  who  compose  the  convention.  The 
members  of  the  convention  may  be  supported,  as  they  un- 
doubtedly are,  by  that  rather  intangible  thing,  a  strong  pub- 
lic sentiment.  But  the  people  are  not  likely  to  vote  against 
a  constitution  because  it  is  too  long.  They  cannot  be  de- 
,  pended  on  to  reject  it  because  it  treats  of  too  many  different 
subjects,  and  omits  one  detail,  or  includes  another.  It  is 
true,  of  course,  that  the  people  could  in  most  cases  be  aroused 
to  reject  a  constitution  which  they  believed  would  restrict 
them  in  the  exercise  of  their  accustomed  rights.  A  violent 
change  in  the  form  of  government,  or  perhaps  a  single 
'*  section  "  which  should  run  counter  to  certain  well-estab- 
lished convictions  or  prejudices  would  lead  to  the  defeat  of 
the  whole  instrument.  Without  a  doubt,  therefore,  the  peo- 
ple are  a  wholesome  check  upon  the  convention. 


n8  THE  REFERENDUM  IN  AMERICA 

When  the  convention  desires  to  escape  the  risk  of  hav- 
ing its  whole  constitution  rejected,  if  the  members  are  shrewe 
they  will  submit  debatable  propositions  separately,  i.  e.,  sue! 
propositions  will  be  taken  out  of  the  body  of  the  instru- 
ment so  that  the  people  need  not  vote  down  the  whole  con- 
stitution in  order  to  get  at  a  few  offensive  lines.    This  devk 
is  not  new.    The  first  Constitutions  of  New  Hampshire  an( 
Massachusetts   were   sent   to   the   town   meetings   with   the 
understanding  that  amendments  might  be  proposed  if  the 
original  drafts  were  not  acceptable.     The  Council  of  Re 
vision,  in  New  York,  when  it  vetoed  the  Convention  Ae 
passed  by  the  legislature  of  that  State  in  1820,  gave  as  one 
of  the  reasons  for  its  action  that  the  bill  contemplated  the  ac- 
ceptance or  rejection  of  the  constitution  in  toto39     It  was 
the  early  experience,  however,  that  the  people  by  rejectii 
articles  here  and  there  as  they  chose  would  often  wreck  the 
entire  constitution.    There  were  large  portions  of  the  schei 
of  government  which  hung  together.    One  part  would 
little  worth  without  the  other,  and  thus,  allowing  once  moi 
for  the  manifest  inaptitude  of  unorganized  bodies  of  me 
to  make  their  own  laws,  it  has  come  to  be  the  rule  that  tl 
general  scheme  itself  must  be  approved  or  rejected  as  a  whole 
Specific  propositions  separately  submitted  are  likely  to 
those  in  which  the  members  of  the  convention  have  little 
heart,  at  any  rate,  though  there  is  known  to  be  a  consie 
erable  body  of  public  sentiment  in  favor  of  them.     For  ii 
stance,  articles  to  extend  the  franchise  to  women  and  pi 
hibiting   the  traffic   in   alcoholic   liquors   sometimes   recer 
this  kind  of  treatment,  and  the  privilege  of  expressing  them- 
selves on  these  points  the  people  often  seem  very  highly  t( 
appreciate.     To  name  only  a  few  of  the  more  recent  cases 
In  1889  when  the  Constitution  of  South  Dakota  was  sul 
mitted  to  the  people  of  that  State  three  propositions  wei 
separately  referred.     These  proposals  were,   (i)  to  prohibil 
the  manufacture  and  sale  of  intoxicating  liquors;  (2)  to 
tablish  a  system  of  minority  representation  in  the  legislature 

80  Jameson,  op.  cit.,  Appendix  F. 


ON  ENTIRE  CONSTITUTIONS  119 

and  (3)  to  select  a  temporary  seat  of  State  government.40 
When  the  Constitution  of  North  Dakota  was  submitted  to 
the  people  in  1889  there  was  a  separate  vote  on  the  subject 
of  prohibiting  the  liquor  traffic.  In  the  State  of  Washing- 
ton in  1889  when  the  first  Constitution  was  submitted  to 
popular  vote  there  were  three  accompanying  propositions, 
relating  again  to  woman  suffirage,  "  prohibition  "  and  the 
selection  of  a  place  to  serve  as  the  seat  of  government.  The 
New  York  Convention  of  1894  which  made  a  number  of 
changes  in  the  Constitution  of  that  State  submitted  its  work 
in  three  parts,  i.  e.,  in  addition  to  the  main  body  of  the  amend- 
ments there  were  two  separate  propositions,  one  making  an 
apportionment  of  senators  and  members  of  the  Assembly  and 
a  second  introducing  some  regulations  in  reference  to  the  im- 
provement of  the  canals.41 

Reverting  to  an  earlier  period  in  American  history  the 
question  as  to  whether  negroes  should  enjoy  the  right  of 
suffrage  was  separately  referred  when  the  Iowa  Constitu- 
tion of  1857  was  submitted  to  popular  vote.  The  same  sub- 
ject was  separately  submitted  by  some  of  the  early  conven- 
tions in  Kansas  while  the  struggles  between  the  slavery  and 
anti-slavery  advocates  were  in  bitter  progress;  and  when 
Oregon  framed  her  first  Constitution  in  1857,  New  York 
adopted  her  third  Constitution  in  1846,  and  Illinois  her  sec- 
ond Constitution  in  1848,  articles  granting  equal  suffrage 
to  negroes  or  otherwise  dealing  with  the  race  question,  were 

40  The  method  of  submission,  which  varies  in  the  different  States,  ac- 
cording to  the  ballot  system  in  use,  was,  in  this  instance,  as  follows : 
All  persons  desiring  to  vote  for  or  against  the  Constitution  or  for  or 
against  any   of  the   articles   submitted  to   a  separate  vote   might  erase 
the  word  "  Yes  "  or  "  No  "  as  he  desired  and  insert  the  name  of  the 
place  which  was  his  choice  as  the  site  for  the  State  capital  upon  the 
ballot,   the  latter  taking  the   following   form.     "  For  the   Constitution — 
Yes — No  "  ;  "  For  Prohibition — Yes — No  '' ;  "  For  Minority  Representa- 
tion— Yes — No  "  ;    "  For as    the    Temporary    seat    of    Gov- 
ernment ".     The  vote  upon  the  whole  constitution  was — Yeas  70131 — 
Nays     3267;     upon     the     prohibition     proposition — Yeas     40234 — Nays 
34510;    upon   the   proposal    for   minority   representation — Yeas    24161 — 
Nays  46200.     Cf.  Constitution  of  South  Dakota  of  1889,  Schedule. 

41  Journal  of  the  Convention,  p.   963. 


I2d  THE  REFERENDUM  IN  AMERICA 

separately  referred  to  the  citizens  of  those  States.  When  the 
Constitution  of  1870  was  submitted  to  a  vote  of  the  people 
in  Illinois  there  were  nine  different  points  to  which  the 
electors  were  invited  to  assent :  ( i )  As  to  the  adoption  of  the 
whole  constitution,  i.  e.,  such  parts  of  it  as  were  not  embraced 
in  the  portions  separately  submitted,  (2)  As  to  seven  sec- 
tions relating  to  the  railroads  in  the  article  entitled  "  Corpora- 
tions ",  (3)  Concerning  an  article  entitled  "  Counties  ",  (4) 
Concerning  an  article  entitled  "Warehouses",  (5)  As  to 
whether  a  simple  majority  or  a  three-fifths  vote  of  the  peo- 
ple in  the  counties  should  be  necessary  to  decide  the  question 
of  the  removal  of  county  seats,  (6)  As  to  a  section  in  rela- 
tion to  the  Illinois  Central  Railroad  Company,  a  state-aided 
enterprise,  (7)  As  to  minority  representation,  (8)  Permit- 
ting or  prohibiting  municipal  subscriptions  in  aid  of  rail- 
roads or  private  corporations,  (9)  Concerning  the  sale  or 
lease  of  a  canal.  42 

As  has  already  been  said,  barring  the  irregular  conven- 
tions of  the  Secession  period  in  our  history  at  the  South,  not 
a  single  constitution  appears  to  have  been  adopted  in  any 
State,  since  Florida  took  this  course  in  1838,  which  was 
not  submitted  to  the  people  until  Mississippi  violated  the 
American  law  of  custom  in  1890.  In  that  year  a  conspiracy 
was  entered  into  between  the  legislature  and  the  convention 
to  disfranchise  a  large  body  of  the  more  ignorant  of  the 
electors,  principally  the  negroes,  who  outnumbered  the  white 
inhabitants  of  the  State.  It  was  planned  to  accomplish  this 
result  through  a  prescribed  educational  qualification  of  a 
rather  novel  character.  Each  person  applying  to  vote  within 
the  State  must  hereafter  "  be  able  to  read  any  section  "  of  the 
Constitution  of  Mississippi,  or  "  be  able  to  understand  the 
same  when  read  to  him  or  give  a  reasonable  interpretation 
thereof  " 43  This  was,  ostensibly  and  in  fact,  a  method  of 
disfranchising  a  large  body  of  citizens  who  had  been  en- 

48  Poore's  Federal  and  State  Constitutions,  Vol.  I,  p.  493. 

43  Constitution  of  Mississippi  of  ^890,  art.  x»    on  the  "Franchise"-. 


ON  ENTIRE  CONSTITUTIONS  121 

franchised  some  twenty  years  before  by  the  Fifteenth  Amend- 
ment to  the  Federal  Constitution.  As  it  was  to  be  expected 
that  the  people,  especially  the  negroes  who  were  in  the  ma- 
jority, would  vote  against  the  Constitution  and  thus  defeat 
the  plan,  if  it  were  submitted  to  them  in  the  usual  manner, 
the  legislature  and  convention  decided  to  take  the  matter  into 
their  own  hands  and  the  Constitution  went  into  force  with- 
out a  referendum. 

Another  Southern  State  in  which  the  negroes  are  a  pre- 
ponderating force  and  in  which  they  outnumber  the 
"  whites  ",  as  in  Mississippi,  is  South  Carolina.  In  the  year 
1895  a  convention  met  to  frame  a  new  constitution  for  that 
State.  Unlike  Mississippi,  where  even  a  preliminary  vote  on 
the  convention  question  was  dispensed  with,  the  existing  Con- 
stitution of  South  Carolina  provided  that  any  proposition 
to  call  a  new  convention  should  be  approved  by  the  people. 
The  subject,  therefore,  was  referred  to  popular  vote  by  a 
joint  resolution  of  the  two  houses  of  the  legislature  passed  in 
i892,44  the  necessary  majority  was  secured  at  an  election  held 
in  1893  and  the  convention  met  without  receiving  instructions 
from  the  legislature  as  to  the  submission  of  the  com- 
pleted constitution.45  The  convention,  once  it  had 
met,  proceeded  to  adopt  the  "  Mississippi  system ",  re- 
quiring that  each  person  who  in  future  should  apply  for 
registration  as  a  voter  in  that  State  should  undergo  a  test 
as  to  his  ability  "  to  read  any  section  in  this  Constitution  ", 
or  to  "  understand  it  and  explain  it  "  when  it  was  read  to 
him.  It  was  felt  in  South  Carolina,  as  in  Mississippi,  that 
such  a  provision  left  a  very  wide  field  open  to  administra- 
tive discretion.  A  property  qualification  for  voters  was  also 
introduced  and  the  suffrage  was  hedged  about  by  other  re- 
strictions meant  to  eliminate  the  negroes  from  the  electoral 
body.46  Lest  its  Constitution  should  be  rejected  the  South 

44  Laws  of  South  Carolina,   1892,  p.  6. 

45  Cf.  Convention  Act,  Laws  of  1894,  P-  802. 

48  Constitution  of  South  Carolina  of  1895,  art.  ii,  on  the  Right  of 
Suffrage. 


122  THE  REFERENDUM  IN  AMERICA 

Carolina  Convention  shrewdly  decided  that  it  would  not  sub- 
mit the  instrument  which  it  had  framed  to  popular  vote. 

In  Delaware  in  1895  a  convention  was  called  after  a  refer- 
endum had  been  taken  in  the  manner  required  by  the  Consti- 
tution of  the  State.  The  legislature  had  declared  in  the  Con- 
vention Act  that  "  in  the  opinion  of  this  legislature  the  con- 
stitution framed  by  the  convention  hereinbefore  provided  for 
should  be  submitted  for  the  approval  of  the  legal  voters  of 
this  State."  47  This  was  regarded,  however,  as  a  mere  recom- 
mendation of  the  legislature,  rather  than  a  positive  mandate, 
and  it  had  no  influence  in  shaping  the  policy  of  the  conven- 
tion. The  delegates  adopted  the  Constitution  definitively  and 
it  was  not  submitted  to  popular  vote.  In  it,  also,  various 
experiments  are  tried  with  a  view  to  preserving  the  "  freedom 
and  purity  of  elections  ".  Any  person  desiring  to  qualify 
as  a  voter  after  January  I,  1900,  it  is  specified,  must  be  able 
"  to  read  this  Constitution  in  the  English  language  and  write 
his  name  ",48  It  is  scarcely  to  be  supposed,  however,  that 
this  provision  would  have  served  as  cause  for  formidable 
popular  opposition  to  the  Constitution  if  the  referendum  had 
been  taken.  It  manifestly  was  not  meant  to  abridge  the 
rights  or  privileges  of  any  class  of  the  people  considered 
as  a  class.  Numerically  the  negroes  are  not  so  strong  a 
power  in  Delaware  as  in  the  more  Southern  States.  With- 
out having  the  Debates  of  the  convention  before  me,  I  am 
inclined  to  accept  the  statement  of  a  prominent  Delaware 
lawyer  in  explanation  of  the  convention's  course  on  this 
occasion.  He  rather  pertinently  remarked  in  response  to  my 
inquiry :  "  The  Constitution  was  not  submitted  to  popular 
vote  because  it  was  felt  that  the  delegates  who  were  elected 
for  this  purpose  knew  more  about  making  a  constitution  than 
the  people  did."  Another  consideration  influencing  the  con- 
vention to  adopt  such  a  policy  was  undoubtedly  the  fact  that 
it  had  been  so  hard  to  bring  the  body  together.  The  people 
had  voted  on  the  subject  repeatedly  and  there  was  no  desire 

"Sec.  8  of  the  Act;  Delaware  Laws  of  1895,  P-  231- 
48  Constitution  of  Delaware,  1895,  art.  v,  sec.  2. 


ON  ENTIRE  CONSTITUTIONS  123 

now  to  jeopardize  a  work  which  was  the  culmination  of  so 
many  years  of  effort.49 

In  the  case  of  the  Louisiana  Convention  of  1898,  which 
also  did  not  submit  its  Constitution  to  popular  vote,  motives 
precisely  similar  to  those  at  hand  in  Mississippi  and  South 
Carolina  influenced  the  members  to  adopt  their  unusual 
course.  The  legislature  had  referred  to  the  people  the  ques- 
tion of  calling  a  convention,  and  they  had  decided  it  in  the 
affirmative.  In  the  same  act  the  legislature  in  specific 
terms  declared  that  the  convention  should  have  "  full  power 
to  frame  and  adopt "  a  constitution  "  without  submission  to 
the  people  ".50  Agreeable  to  this  grant  of  authority,  and 
the  understanding  which  existed  among  the  political  leaders 
of  the  State,  the  Constitution  was  not  referred  to  popular 
vote.  In  this  case  greater  cause  existed  for  omitting  the  refer- 
endum than  in  the  other  two  Southern  States.  The  conven- 
tion scarcely  took  the  trouble  to  conceal  its  daring  purpise 
which  was  of  course  to  disfranchise  large  bodies  of  the  negro 
voters.51  Again  the  educational  qualification  with  some 
modifications  was  resorted  to,  each  person  who  applied  for 
registration  as  a  voter  being  compelled  to  write  out  his  own 
application  after  a  form  composed  of  some  eighty  words. 
Failing,  should  he  be  not  able  to  read  or  write  to  the  satisfac- 
tion of  the  registration  officers,  he  might  qualify  on  any  one 
of  two  other  tests:  (i)  If  he  possessed  property  within  the 
State  assessed  at  a  value  of  at  least  $300,  and  (2)  if  he  were 
entitled  to  vote  by  the  laws  of  any  State  prior  to  January 
i,  1867,  or  should  be  a  son  or  grandson  not  less  than  twenty- 
one  years  of  age  at  the  date  of  the  adoption  of  this  Con- 
stitution of  some  person  entitled  at  that  period  to  exercise 
the  franchise.  Citizens  of  foreign  birth  naturalized  prior 
to  January  i,  1898,  were  specifically  excepted  from  the  re- 
strictions and  need  undergo  none  of  the  tests.52  Thus  with- 

49  Infra,  p.  13 5- 

80  Acts  of  Louisiana  of  1896,  pp.  85-87. 
51  Art.  197  of  the  Constitution  of  1898. 
02  Constitution  of  1898,  art.  197,  sec.  5. 


124  THE  REFERENDUM  IN  AMERICA 

out  openly  purporting  to  do  this,  though  the  motive  is  ill- 
concealed,  the  Constitution  excludes  from  the  franchise  just 
such  classes  in  the  electorate  as  the  political  leaders  desired 
to  reach.  The  illiterate  negroes  are  not  likely  to  have  $300 
worth  of  property,  and  did  not  enjoy  the  right  of  suffrage 
prior  to  1867.  The  illiterate  white  men  may  possess  $300 
worth  of  property,  or  if  they  do  not,  are  pretty  certain  with 
their  sons  and  grandsons  to  get  in  through  the  curious  provi- 
sion about  citizens  of  standing  in  1867.  Foreign  naturalized 
citizens,  who  are  nearly  always  white,  are  subject  to  no  one 
of  these  harsh  restrictions.  Such  discriminating  tests  have 
practically  disfranchised  all  but  a  relatively  small  propor- 
tion of  the  negroes  in  Louisiana  while  touching  none  of  the 
white  voters.  To  have  submitted  such  a  constitution  to  the 
people  would  have  been  certainly  fatal  to  its  success,  so  the 
legislature  issued  directions  which  the  convention  carefully 
obeyed  not  to  put  the  fate  of  the  instrument  in  doubt  by  a 
referendum.  This  is  the  most  peculiar  case  in  the  recent 
series  in  the  South  in  that  the  legislature  openly  authorized 
the  convention  to  dispense  with  the  election.  Nevertheless  it 
must  be  remembered  that  a  preliminary  vote  was  taken  to 
decide  whether  a  convention  should  meet  or  not.  It  was 
Mississippi  which  omitted  both  the  preliminary  and  subse- 
quent votes  and  by  premeditation  and  stealth  violated  all  the 
rules  of  our  unwritten  law  on  this  subject. 

In  Mississippi  the  conspiracy  of  the  legislature  and  the 
convention,  acting  together  to  deprive  the  electors  of  any 
direct  part  in  the  adoption  of  the  Constitution,  became  the 
subject  of  an  interesting  opinion  by  the  judiciary  of  the 
State.53  This  opinion  is  quite  out  of  harmony  with  the 
whole  history  of  our  constitutional  development,  marking  a 
return  to  the  theory  that  the  convention  is  a  "  sovereign 
body  ",  and  therefore  a  revolutionary  body  if  it  selects  to  be, 
subject  only  to  the  one  condition  imposed  by  the  Federal  Con- 
stitution that  the  government  which  it  establishes  shall  be 
"  republican  "  in  form,  a  term  which  has  never  been  accu- 

53  Sproule  v.   Fredericks,   69   Miss.,  p.   898. 


ON  ENTIRE  CONSTITUTIONS  125 

rately  or  satisfactorily  defined,  and  is  indeed  so  vague  and 
uncertain  in  meaning  that  it  would  perhaps  include  any  gov- 
ernment whose  chief  magistrate  was  not  called  eo  nomine  an 
emperor  or  king.  The  judges  in  Mississippi  have  asserted, 
with  historical  tendencies  nearly  all  opposing  them,  that  it  is 
only  a  theory  of  the  "  political  essayist  and  the  legal  doctrin- 
aire by  which  it  is  sought  to  be  established  that  the  expres- 
sion of  the  will  of  the  legislature  shall  fetter  and  control  the 
constitution- making  body  ".  This  was  an  obiter  dictum  in 
every  sense,  an  opinion  for  which  the  court  was  not  asked, 
since  the  legislature  had  made  no  attempt  to  bind  the  conven- 
tion by  commanding,  or  even  recommending  it  to  submit  its 
constitution  to  popular  vote.  To  require  the  convention  to 
follow  the  legislative  direction  in  the  matter  or  obey  the  un- 
written law  of  the  land  respecting  a  referendum  on  entire 
constitutions  would  be,  the  court  declared,  "  to  degrade  this 
sovereign  body  below  the  level  of  the  lowest  tribunal  clothed 
with  ordinary  legislative  powers  ".  The  court  chose  to  re- 
pudiate in  unmeasured  terms  the  whole  doctrine  of  check  or 
curb  upon  the  authority  of  this  unicameral  law-making  as- 
sembly, joining  the  other  departments  of  the  Mississippi  gov- 
ernment, the  legislative,  the  executive,  and  the  conventional 
in  their  cabal  to  restrict  the  suffrage  rights  of  a  large  body  of 
the  citizens. 

Another  judicial  opinion,  scarcely  more  reassuring,  is  con- 
tributed by  the  Kentucky  Court  of  Appeals.54  It  appears 
that  the  Constitution  of  Kentucky  framed  in  1891,  while  sub- 
mitted to  the  people,  as  the  legislature  in  the  act  calling  to- 
gether the  convention  had  required55,  was  altered  and 
amended  by  the  convention  after  it  had  been  approved  by  and 
received  back  from  the  electoral  body.  By  an  ordinance 
passed  in  April,  1891,  the  convention  referred  its  completed 
code  to  the  people,  adjourning  to  meet  again  in  the  following 
September.  The  referendum  was  taken  during  the  recess, 
but  the  delegates  when  they  reconvened  voted  to  make  cer- 

54  Miller  v.  Johnson,  92  Ky.,  589. 
88  Acts  of  Kentucky,   1890,  p.   124, 


126  THE  REFERENDUM  IN  AMERICA 

tain  changes  in  the  ratified  instrument,  some  of  which  were 
of  an  important  character.  This  raises  another  interesting 
point  as  to  the  rights  and  powers  of  the  convention,  one  which 
seems  hitherto  to  have  received  scarcely  any  attention.  Nor 
has  the  Kentucky  court  yet  given  us  any  definite  or  proper 
precedent  in  respect  of  this  subject,  since  it  evaded  the  direct 
issue,  which  was  again  whether  or  not  the  legislature  can 
bind  a  convention.  If  it  were  to  submit  its  work  to  the  peo- 
ple did  this  not  mean  its  finished  work,  rather  than  a  mere 
draft  which  it  might  later  amend  and  rearrange  to  its  own 
mind  ?  The  court  on  a  technical  point  found  in  favor  of  the 
validity  of  the  constitution  in  order,  it  would  seem,  to  save 
the  State  from  disturbance  and  expense  which  were  sure  to 
ensue  if  acts  performed  and  proceedings  already  taken  should 
be  declared  illegal.  A  new  referendum  would  needs  be  held 
and  indeed  in  case  of  an  adverse  popular  vote  a  new  conven- 
tion might  have  to  be  assembled.  So  much  difficulty  had 
been  experienced  in  bringing  the  late  convention  together 
that  it  was  no  pleasant  prospect  to  think  of  doing  all  this 
work  over  again.56  The  court  decided  therefore  that  when 
the  "  political  department "  of  the  government  had  assumed 
and  recognized  the  constitution  to  be  a  valid  instrument  it 
was  not  within  the  scope  of  the  court's  powers  to  compel 
a  "  co-equal  department ",  i.  e.,  the  convention,  to  perform 
its  duty  when  the  result  would  be  to  "  bring  confusion  and 
anarchy  upon  the  State  ".  Such  an  opinion  is  without  very 
much  general  legal  interest  and  it  contributes  little  to  either 
side  of  this  important  discussion.  It  was  dictated  by  consid- 
erations of  temporary  expediency  and  it  must  be  viewed  in 
this  light.  There  was  a  vigorous  dissenting  opinion  in  which 
it  was  declared  that  the  principle  established  by  the  court  was 
"  heavily  laden  with  mischief  to  the  inherent  and  inalienable 
rights  of  the  people ".  A  protest  was  therefore  entered 
against  the  exercise  by  the  convention  of  this  "  arbitrary 
power  ",  which  if  "  carried  to  its  legitimate  results  would  re- 

58  Infra,  p.  134- 


ON  ENTIRE  CONSTITUTIONS  127 

fleet  back  the  harsh  grating  of  the  dungeon  door  and  the  rat- 
tle of  the  tyrant's  chains  ". 

Although  it  is  impossible  to  think  that  our  entire  historical 
development  respecting  this  subject  of  a  referendum  on  com- 
plete constitutions  is  now  lightly  to  be  disregarded,  the  re- 
cent practice  in  several  States  is  calculated  to  unsettle  many 
of  our  cherished  theories.  We  are  brought  to  these  con- 
clusions :  that  if  the  old  constitution  is  silent  as  to  the  question 
of  the  submission  of  a  new  constitution,  the  legislature  and 
convention  cooperating, — in  the  South  at  least  where  public 
opinion  seems  not  to  discountenance  it,  especially  when  some 
particular  end  is  to  be  gained  thereby — may  reckon  without 
the  electors  as  a  ratifying  force.  In  cases  in  which  the 
legislature  still  demands  a  vote  of  the  people,  although  the 
conventions  of  Delaware  and  Kentucky  have  come  dan- 
gerously near  the  point  of  violating  the  law  of  American  cus- 
tom and  tradition  on  this  subject,  there  fortunately  is  yet  no 
authority  for  extending  to  this  unicameral  assembly  unlim- 
ited and  sovereign  powers  which  would  release  it  from 
proper  control.  The  Mississippi  opinion  B7  is  at  hand,  of 
course,  in  favor  of  an  unchecked  convention,  though  this  we 
can  certainly  regard  as  no  very  valuable  or  authoritative 
precedent.  We  seem  to  stand  therefore  just  about  where  we 
did  when  Judge  Jameson  laid  down  his  pen  at  the  end  of  his 
masterly  investigation  of  this  subject,  and  Americans  may 
entertain  the  hope  that  the  rules  governing  the  convention 
which  he  so  clearly  perceived  and  so  well  classified  and  which 
have  our  respect  because  they  are  the  rules  that  have  been 
developed  out  of  our  practice  and  experience,  may  not  soon 
be  departed  from. 

57  Sproule  v.  Fredericks,  loc.  cit. 


CHAPTER  V 


THE   AMENDMENT   OF    CONSTITUTIONS   BY    CONVENTIONS 

ANOTHER  topic  is  now  to  be  considered,  and  this  has  to 
do  with  the  development  of  the  system  by  which  the  State 
constitutions  may  be  amended.  When  constitutions  are  to  be 
changed,  the  normal  method,  as  we  have  seen,  is  by  calling 
together  a  new  convention,  if  these  changes  are  so  important 
as  to  amount  to  a  general  revision.  Coincidently  with  the 
referendum  on  whole  constitutions,  if  not  somewhat  antedat- 
ing it,  there  has  developed  another  referendum,  on  the  subject 
of  assembling  a  new  convention.  The  electors  in  the  States 
are  themselves  to  determine,  (i)  whether  the  constitution 
or  form  of  government  which  the  convention  has  framed, 
shall  be  adopted,  and  (2)  when  the  constitution  or  form  of 
government  has  been  adopted,  whether  it  shall  be  abolished 
or  changed.  Such  a  poll  of  the  people  to  decide  upon  the 
expediency  of  calling  a  convention  to  revise  the  constitution, 
was  proposed  in  Pennsylvania  in  1777,  and  I778,1  though 
the  legislature  rescinded  its  action  before  the  referendum 
was  really  taken.  The  Massachusetts  legislature  in  1779, 
desiring  to  ascertain  the  sense  of  the  people  respecting  a  new 
government,  asked  the  electors  to  decide  whether  a  con- 
vention should  be  called  or  not.  Their  answer  being  in  the 
affirmative,  John  Adams'  Constitution  was  framed  and  sub- 
mitted to  popular  vote,  the  first  constitution  in  the  United 
States,  to  be  made  the  subject  of  a  plebiscite. 

The  Constitution  of  Pennsylvania  of  1776,  and  the  early 
Constitutions  of  Vermont,  provided  for  their  own  amendment 
through  that  curious  and  unsatisfactory  body  the  Council 
of  Censors.  When  this  Council  proposed  amendments,  they 

1  Ante,  pp.  49-52. 

128 


CONSTITUTIONAL  AMENDMENT  BY  CONVENTION     129 

were  to  be  submitted  to  a  convention  specially  chosen  for 
the  purpose  of  considering  them.  This  method  of  revision 
was  abolished  in  Pennsylvania  in  1790,  but  it  continued  to 
be  a  feature  of  the  constitutional  practice  of  Vermont  until 
1870,  several  conventions  having  met  under  authority  de- 
rived from  this  odd  provision,  and  the  Constitution  having 
been  several  times  amended  by  this  process.  The  Constitu- 
tion of  Massachusetts  of  1780,  provided  that  in  1795  the 
election  officers  in  the  various  towns,  etc.,  should  "  collect 
the  sentiments  "  of  the  people  concerning  "  the  necessity  and 
expediency  of  revising  the  constitution  in  order  to  amend- 
ments ".  Upon  a  two-thirds  vote  of  the  people,  a  conven- 
tion was  to  be  called  by  the  General  Court  or  legislature.2 
The  Georgia  Constitution  of  1777  also  provided  for  a  con- 
vention, when  it  was  a  question  of  altering  the  constitution, 
but  upon  the  presentation  of  petitions  bearing  the  signatures 
of  a  majority  of  the  voters  in  each  county,  instead  of  an  act- 
ual assembling  of  the  votes  pro  and  con  at  the  polling  places.3 
The  Constitution  of  New  Hampshire,  adopted  in  1784, 
contained  a  clause  which  made  it  necessary  for  the  legislature 
to  call  a  convention,  at  the  end  of  seven  years,  or  in  1791. 
This  provision  was  self-executory,  the  convention  meeting 
without  a  reference  of  the  subject  to  popular  vote.  No  alter- 
ation should  be  made  in  the  constitution  by  the  convention, 
however,  unless  it  were  first  "  laid  before  the  towns  and 
unincorporated  places  "  of  New  Hampshire,  and  approved 
"  by  two-thirds  of  the  qualified  voters  present,  and  voting 
upon  the  question  ".*  By  the  New  Hampshire  Constitution 
of  1792,  the  people  were  to  be  polled  at  the  expiration  of 

2  Constitution  of  Massachusetts,  chapter  vi,  art.  x. 

8  Constitution  of  1777,  article  Ixiii. — "No  alteration  shall  be  made  in 
this  Constitution  without  petitions  from  a  majority  of  the  counties,  and 
the  petitions  from  each  county  to  be  signed  by  a  majority  of  the  voters 
in  each  county  within  this  State ;  at  which  time  the  Assembly  shall 
order  a  convention  to  be  called  for  that  purpose,  specifying  the  altera- 
tions to  be  made,  according  to  the  petitions  preferred  to  the  Assembly 
by  the  majority  of  the  counties  as  aforesaid." 

*  Cf.  final  paragraph  of  the  Constitution  of  New  Hampshire  of  1784, 


13°  THE  REFERENDUM  IN  AMERICA 

every  seven  year  period,  on  the  subject  of  calling  a  con- 
vention to  revise  the  fundamental  law  of  the  State.  It  was 
again  provided  that  all  amendments  originating  in  this  man- 
ner should  be  laid  before  the  people  assembled  in  the  town 
meetings.5  In  Delaware  by  the  Constitution  of  1792,  the 
electors  were  declared  to  be  the  only  authority  competent  to 
decide  the  convention  question.6  Kentucky  by  the  Consti- 
tutions of  1792  and  1799,  and  Tennessee  by  the  Constitu- 
tion of  1796,  left  it  to  the  people  to  determine  when  a  con- 
vention should  be  assembled. 

It  soon  came  to  be  so  generally  understood  that  it  was  a 
prerogative  of  the  citizens  at  large  directly  to  determine  this 
important  point,  that  the  "  Council  of  Revision  ",  the  plural 
vetoing  power  in  New  York,  vetoed  a  bill  which  had  been 
passed  by  the  legislature  of  that  State  in  November,  1820, 
and  which  authorized  a  constitutional  convention  without 
first  securing  the  people's  consent.  Chancellor  Kent,  a  mem- 
ber of  the  Council,  prepared  the  statement  which  accom- 
panied the  bill  on  its  return  to  the  legislature,  with  the 
Council's  disapproval.  The  first  reason  for  the  Council's 
dissent  was  that  the  convention  would  meet  "  without  having 
first  taken  the  sense  of  the  people  whether  such  a  conven- 
tion for  such  a  general  and  unlimited  revisal  and  alteration 
of  the  Constitution  be  in  their  judgment  necessary  and  ex- 
pedient ".  The  various  precedents  were  carefully  examined, 
and  it  was  asserted  thus  early  in  the  century  in  the  leading 
State  of  the  Union,  by  a  body  composed  of  some  of  the  ablest 
legal  minds  in  the  United  States,  that  the  law  of  custom  as  it 
had  been  developed  in  this  country  with  respect  to  this 

5  Constitution  of   1792,   sections  99-100. 

8  Constitution  of  1792,  article  x. — "  No  convention  shall  be  called 
but  by  the  authority  of  the  people ;  and  an  unexceptionable  mode  of 
making  their  sense  known,  will  be  for  them  at  a  general  election  of 
representatives  to  vote  also  by  ballot,  for  or  against  a  convention,  as 
they  shall  severally  choose  to  do ;  and  if,  thereupon,  it  shall  appear 
that  a  majority  of  all  the  citizens  in  the  State  having  right  to  vote  for 
representatives,  have  voted  for  a  convention,  the  General  Assembly 
shall,  accordingly  at  their  next  sessions  call  a  convention  ",  etc. 


CONSTITUTIONAL  AMENDMENT  BY  CONVENTION     131 

subject,  was  not  to  be  lightly  set  aside.  The  Council  said: 
'''  The  declared  sense  of  the  American  people  throughout  the 
United  States  on  this  very  point,  cannot  but  be  received  with 
great  respect  and  reverence ;  and  it  appears  to  be  the  almost 
universal  will  expressed  in  their  constitutional  charters,  that 
conventions  to  alter  the  constitution  shall  not  be  called  at 
the  instance  of  the  legislature,  without  the  previous  sanc- 
tion of  the  people  by  whom  those  constitutions  were  or- 
dained." The  Council  declared  that  there  ought  to  be  two 
referenda,  one  to  determine,  in  the  first  instance,  as  to  the 
general  expediency  of  calling  the  convention,  and  a  second 
as  to  the  advisability  of  accepting  the  work  of  the  con- 
vention, and  promulgating  it  as  the  constitution  of  the 
State.7  The  legislature,  having  failed  to  do  its  part  well  in 
1820,  thereupon  in  the  following  year  took  up  the  subject 
again,  and  passed  a  law  which  properly  embodied  the  Coun- 
cil's recommendations.8  The  people  were  to  vote  "  Conven- 
tion "  or  "  No  Convention  ",  as  they  might  prefer,  and  such 
changes  as  the  body  might  make  in  the  organic  law,  should 
the  people  authorize  it  to  meet,  would  have  then  to  be  sub- 
mitted "  to  the  decision  of  the  citizens  of  this  State  *  *  * 
together  or  in  distinct  propositions  as  to  them  [the  members 
of  the  convention]  shall  seem  expedient  ". 

Nearly  all  the  constitutions  now  contain  definite  provisions 
on  this  subject.  When  the  legislatures  leave  it  to  the  people 
to  decide  whether  a  convention  shall  be  called  or  not,  they  do 
so  as  a  rule,  pursuant  to  no  law  of  custom,  nor  by  virtue  of 
any  implied  power,  but  because  of  an  imperative  command 
in  the  constitution.  For  instance,  the  Constitution  of  Utah, 
the  newest  of  the  States,  declares : 9  "  Whenever  two-thirds 
of  the  members  elected  to  each  branch  of  the  legislature  shall 
deem  it  necessary  to  call  a  convention  to  revise  or  amend 

7  See  the  objections  of  the  Council  to  the  bill  calling  a  convention, 
dated  Nov.   29,    1820.    This  paper  may  be  conveniently  referred  to   in 
Jameson's  Constitutional  Conventions,  Appendix  F. 

8  Cf.   Hammond's  History   of  Political  Parties  in   the  State  of  New 
York,  Vol.  I,  p.  539  ;  Laws  of  New  York,  1821,  p.  83. 

9  Art.  xxiii,  sec.  2. 


13 2  THE  REFERENDUM  IN  AMERICA 

this  Constitution,  they  shall  recommend  to  the  electors  to 
vote  at  the  next  general  election  for  or  against  a  conven- 
tion, and  if  a  majority  of  all  the  electors  voting  at  such  elec- 
tion shall  vote  for  a  convention,  the  legislature  at  its  next 
session  shall  provide  by  law  for  calling  the  same." 

The  Constitution  of  Delaware  of  1897,  another  recently 
adopted  instrument,  treats  this  subject  as  follows :  "  The 
General  Assembly  by  a  two-thirds  vote  of  all  the  members 
elected  to  each  house,  may  from  time  to  time  provide  for  the 
submission  to  the  qualified  electors  of  the  State  at  the  gen- 
eral election  next  thereafter,  the  question  '  Shall  there  be 
a  convention  to  revise  the  Constitution  and  amend  the  same  ? ' 
and  upon  such  submission,  if  a  majority  of  those  voting  on 
said  question  shall  decide  in  favor  of  a  convention  for  such 
purpose,  the  General  Assembly  at  its  next  session  shall  pro- 
vide for  the  election  of  delegates  to  such  convention  at  the 
next  general  election." 

It  appears  that  thirty  of  the  forty-five  different  State 
Constitutions  contain  definite  provisions  of  a  similar  kind 
respecting  a  referendum  on  the  convention  question,  and  in 
only  fifteen  is  the  legislature  left  to  decide  upon  its  own 
authority  what  it  will  do  in  the  matter,  when  the  occasion 
arises,  and  a  general  constitutional  revision  is  required.10 

A  closer  examination  of  these  Constitutions  will  show 
that  in  seventeen  of  the  thirty  cases,  the  method  of  submis- 
sion is  as  in  Utah  and  Delaware, — i.  e.,  in  pursuance  of  an 
affirmative  vote  of  two-thirds  of  the  members  elected  to  the 
legislature.  In  one  State,  Nebraska,  three-fifths  of  the 
members  must  concur  before  the  subject  is  submitted.  A 
simple  majority  of  the  members  of  the  legislature  voting  on 
the  question,  as  in  the  case  of  other  laws,  seems  to  be  suf- 
ficient to  bring  the  matter  to  the  referendum  in  Alabama, 
Missouri  and  Tennessee,  while  in  Wisconsin  an  ambiguous 
"  majority  of  the  Senate  and  Assembly  ",  and  in  West  Vir- 

10  These  fifteen  are  Arkansas,  Connecticut,  Georgia,  Indiana,  Louisi- 
ana, Maine,  Massachusetts,  Mississippi,  New  Jersey,  North  Dakota, 
Oregon,  Pennsylvania,  Rhode  Island,  Texas,  and  Vermont, 


CONSTITUTIONAL  AMENDMENT  BY  CONVENTION    133 

ginia  "  a  majority  of  the  members  elected  to  each  house  of 
the  legislature "  are  required.  In  Kentucky  the  proposi- 
tion must  be  approved  by  a  majority  of  all  the  members 
elected  to  the  legislature,  in  two  successive  General  Assem- 
blies, a  rather  effective  curb  upon  hasty  or  precipitate  action. 

In  another  class  of  States,  following  the  example  of  Massa- 
chusetts and  New  Hampshire,  the  Constitutions  specify  that 
the  subject  of  calling  a  convention  shall  be  submitted  to  the 
people  by  the  legislature  at  regular  intervals ;  in  New  Hamp- 
shire every  seven  years,  in  Iowa  in  1870  and  each  tenth 
year  thereafter,  in  Michigan  in  1866  and  each  sixteenth  year 
thereafter,  in  Maryland  in  1887  and  every  twenty  years  fol- 
lowing, in  Virginia  in  1888  and  thenceforward  at  periods  of 
twenty  years,  in  New  York  in  1916  and  every  twentieth 
year  thereafter.  In  these  cases  it  is  often  declared  expressly 
that  the  legislature  may  submit  the  question  at  other  times 
when  it  may  consider  this  policy  to  be  expedient,  e.  £.,  in 
New  York,  Michigan  and  Iowa,  and  where  not  so  declared 
there  is  a  fair  implication  that  it  may  do  so. 

In  the  referendum  on  the  convention  subject,  it  is  the  al- 
most uniform  practice  that  a  majority  of  the  votes  cast,  de- 
termines the  fate  of  the  proposal.  In  Kentucky  alone  is  this 
rule  definitely  qualified  and  there  it  is  necessary,  if  a  majority 
shall  be  in  favor  of  the  question,  that  the  total  vote  for  the 
convention  shall  be  equal  to  at  least  one-fourth  of  the  num- 
ber of  votes  cast  in  the  last  general  election  in  the  State,  a 
limit  which  is  certainly  not  high,  and  established  in  a 
righteous  spirit  with  a  view  to  safeguarding  the  State  against 
a  convention  which  might  perhaps  receive  its  mandate  from 
a  very  small  minority  of  the  citizens.  Although  Kentucky, 
by  her  Constitution  of  1891,  still  throws  some  difficulties  in 
the  way  of  the  legislature  in  assembling  a  convention,  the 
process  is  simplicity  itself,  in  comparison  with  that  which 
some  very  shortsighted  men  introduced  in  the  State  Con- 
stitution of  I85O.11  This  odd  system  comprised  a  vote  of 

11  Article  xii. 


134  THE  REFERENDUM  IN  AMERICA 

"  a  majority  of  all  the  members  elected  to  each  house  of  the 
General  Assembly  ",  and  two  subsequent  "  ratifying  votes 
of  a  majority  of  all  the  citizens  of  this  State  entitled  to  vote 
for  representatives  ",  taken  at  successive  general  elections 
for  members  of  the  legislature.  Thus  more  than  four  years 
were  required  to  call  a  convention,  granting  that  it  were  at  all 
possible  to  fulfill  so  difficult  a  condition  as  securing  for  the 
proposal  a  majority,  not  of  the  votes  cast,  but  of  all  those 
entitled  to  be  cast,  and  not  once,  but  on  two  occasions  and 
at  succeeding  elections.  For  instance,  one  General  Assembly 
could  vote  to  submit  the  question  to  the  people,  but  the  peo- 
ple could  not  be  consulted  until  the  next  election  for  repre- 
sentatives nearly  two  years  later,  and  the  proposition  could 
not  be  approved  a  second  time  before  another  period  of  two 
years  had  elapsed.  The  act  definitely  authorizing  the  con- 
vention, then,  was  still  to  be  adopted  by  the  Assembly  at  a 
subsequent  session.  Strangely  enough,  there  was  no  other 
method  of  amending  the  Constitution  of  Kentucky,  than  by 
convention.  Upon  the  legislature  was  conferred  no  power 
of  initiation,  with  respect  to  separate  amendments,  which  it 
now  possesses  so  generally  in  the  various  States.  Such  a 
thing  as  changing  the  Constitution  was  for  long  years,  there- 
fore, a  practical  impossibility.  Although  sporadic  attempts 
were  earlier  made  to  meet  the  conditions  precedent  to  the 
calling  of  a  convention,  there  was  not  a  single  regular  ses- 
sion of  the  legislature,  beginning  with  1879-80,  until  the 
convention  was  finally  authorized  in  1890,  when  this  subject 
was  not  before  the  General  Assembly  of  Kentucky  State. 
The  necessary  popular  majorities  were  at  last  secured,  in 
1887 12  and  1889,  the  members  of  the  convention  were 
elected  in  1890,  and  in  1891  the  old  Constitution  was  super- 
seded by  a  new  one  in  which  good  care  was  taken  that  the 
State  should  not  again  get  into  such  a  trap. 

Delaware,  under  the  Constitution  of  1831,  which  was  in 
force  until  a  very  recent  date,  had  somewhat  similar  trials  in 

13  Laws  of  Kentucky,  1887-8,  p.  4. 


CONSTITUTIONAL  AMENDMENT  BY  CONVENTION    *35 

the  course  of  her  attempts  to  assemble  a  new  convention. 
Here,  too,  if  a  convention  were  to  be  called,  the  proposition 
must  be  approved  by  "  a  majority  of  all  the  citizens  in  the 
State  having  right  to  vote  for  representatives  ",13  This  ma- 
jority, it  was  specified,  should  be  ascertained  "  by  reference 
to  the  highest  number  of  votes  cast  in  the  State  at  any  one 
of  the  three  general  elections  next  preceding  ".  The  con- 
vention question  was  to  be  voted  on  by  the  people,  at  a  "  spe- 
cial election  ",  when  as  American  experience  has  demon- 
strated, it  is  even  more  difficult  to  bring  together  any  large 
number  of  men  who  have  definite  views  to  express  respect- 
ing public  questions,  than  at  general  pollings,  a  point  which 
deserves  to  be  dwelt  on  more  at  length  in  another  place.  At 
the  election  on  November  i,  1887,  the  vote  on  the  subject  of 
calling  a  constitutional  convention  was  14431  yeas  and  398 
nays,  the  number  of  votes  required  being  15640.  At  the 
election  of  May  19,  1891,  there  were  17105  votes  for  a  con- 
vention, and  115  against  it,  the  number  of  votes  required  at 
this  time  having  increased  to  I7674.14  However,  the  Dela- 
ware Convention  of  1831  had  not,  like  the  Kentucky  Conven- 
tion, excluded  the  legislature  from  changing  the  Constitution. 
Amendment  could  be  effected  by  a  two-thirds  majority  vote 
of  one  legislature,  and  a  three-fourths  majority  vote  of  the 
next  (without  a  referendum).  After  various  fruitless  en- 
deavors to  call  a  convention  by  the  method  regularly  pre- 
scribed, the  legislature  at  last  set  itself  to  the  task  of  adopting 
an  amendment,  which  would  change  this  troublesome  pro- 
vision of  the  Constitution  and  open  the  way  to  a  revision  of 
the  entire  instrument.15  The  Delaware  Convention,  which 
soon  met,  disposed  of  the  last  trace  of  this  old  check,  and  put 
the  State  in.  line  with  the  other  Commonwealths,  where  the 
tendency  had  been  at  work  for  a  long  time  to  make  it  easy 

13  Constitution  of   1831,  art.  ix. 

14  Cf.  McPherson's  Handbook  for  1888  and   1892. 

15  Laws  of  Delaware,   1893,  chapter  540.    The  amendment  simply  au- 
thorized the  vote  to  be  taken  at  a  general  instead  of  at  a  special  elec- 
tion. 


i36  THE  REFERENDUM  IN  AMERICA 

rather  than  hard  for  the  agents  charged  with  this  task,  to 
effect  changes  in  the  constitution. 

We  need,  too,  to  look  at  the  case  in  which  the  constitution 
is  silent  on  the  point  of  the  legislature  calling  a  convention. 
What,  then,  is  the  legislature's  duty?  Has  it  the  power  to 
call  a  convention  anyhow,  without  express  constitutional  au- 
thorization to  that  effect,  and  if  so,  is  it  restricted  as  to  the 
ways  and  means  to  be  adopted  in  attaining  this  end?  When 
the  constitution  says  that  it  shall  be  amended  by  some  one 
particular  method,  and  that  method  is  not  by  convention, 
explicitly  stating  that  no  other  shall  be  employed,  it  seems 
to  be  admitted  that  to  act  in  contravention  of  the  terms  of 
that  instrument,  would  be  revolutionary,  an  offence  no 
smaller  than  to  violate  any  other  constitutional  provision.18 
For  instance,  the  Constitution  of  Delaware  of  1776,  a  very 
imperfect  instrument,  we  will  all  say,  at  least  in  this  respect, 
provided,  after  declaring  that  certain  portions  of  the  Consti- 
tion  "  ought  "  never  to  be  violated  "  on  any  pretence  what- 
ever ",  that  "  no  other  part  *  *  *  shall  ever  be  altered, 
changed  or  diminished  without  the  consent  of  five  parts  in 
seven  of  the  Assembly,  and  seven  members  of  the  Legisla- 
tive Council  ".17  It  must  be  remembered,  of  course,  that  the 
legislature  might  have  changed  that  part  of  the  Constitution 
giving  it  the  sole  right  to  amend  the  same,  just  as  it  might 
have  changed  any  other  portion  of  the  instrument.  Then 
the  convention,  apparently  prohibited,  could  have  been  le- 
gitimated by  the  legislature  by  way  of  a  constitutional 
amendment.  It  is  Judge  Jameson's  opinion  that  such  a  pro- 
vision inhibited  the  amendment  or  general  revision  of  the 
constitution  by  a  convention  or  by  any  other  authority  than 
the  General  Assembly.  There  was  no  implication  of  power 
on  the  part  of  the  legislature  to  call  a  convention,  the  Consti- 
tution having  omitted  to  give  its  directions  on  the  point. 
Such  an  assumption  would  have  been  quite  unwarranted, 
for  "  no  power  can  be  implied  in  the  face  of  a  direct  and  ex- 

18  Jameson,  op.  cit.,  pp.  600-601. 
1T  Art.  xxx. 


CONSTITUTIONAL  AMENDMENT  BY  CONVENTION    137 

press  prohibition  ",18  But  where  there  is  no  prohibition  of 
the  exercise  of  the  power  or  allegation  of  the  existence  of 
the  right  of  the  legislature  to  call  a  convention,  for  the  pur- 
pose of  amending  the  constitution,  that  prerogative  rests  with 
the  General  Assembly  by  inference,  as  a  part  of  the  general 
grant  of  legislative  authority.19 

The  case,  too,  is  distinguishable  of  a  constitution  which  es- 
tablishes an  alternate  mode  of  amendment,  without  having 
expressly  prohibited  the  use  of  the  convention  method,  as 
the  framers  of  the  Delaware  Constitution  of  1776  are  held  to 
have  done.  We  will  soon  sketch  the  development  of  what 
has  been  called  the  legislative  mode  of  amendment,  that  is, 
one  by  and  through  the  legislature,  which  is  meant  to  sim- 
plify the  problem  of  constitutional  change,  and  save  the 
State  from  the  cost  and  labor  of  putting  the  cumbrous  con- 
vention system  into  operation.  Now,  when  the  constitution 
specifies  that  it  may  itself  be  amended  by  the  legislature  in 
such  and  such  a  manner,  and  there  is  no  word  in  disparage- 
ment or  prohibition  of  any  other  method,  are  we  to  infer  that 
the  elder  and  primal  method  by  convention  has  been  inter- 
dicted? Assuredly  not.  There  is  the  force  of  a  great  deal 
of  precedent  and  principle  to  show  that  such  a  claim  would  be 
quite  untenable.20  The  fact  has  been  clearly  established 
that  the  legislative  mode,  except  when  there  are  ex- 
press declarations  to  the  contrary,  is  intended  only  to  cover 
the  case  of  a  few  specific  alterations  in  the  fundamental  law, 
— one,  two  or  a  half  dozen.  A  convention  on  the  other  hand, 
is  an  agency  by  which  the  entire  constitution  is  revised,  and 
although  it  may  after  investigating  the  subject,  recommend 
only  a  partial  remodelling,  the  opinion  is  entertained  by  those 
who  have  called  the  convention  together,  that  large  changes 
are  needed,  and  the  body  undertakes  its  labors  committed  to 
this  task.  There  are  thus  two  separate  agents  to  accomplish 
two  separate  objects,  and  one  agent  exercising  its  preroga- 
tive, cannot  prejudice  the  other  in  the  exercise  of  its  peculiar 

"Jameson,  p.  60 1.         19  Ibid.,  pp.  211,  60 1.         20  Ibid.,  p.   615. 


I38  THE  REFERENDUM  IN  AMERICA 

rights.  The  constitution  may  be  wholly  silent  in  regard  to 
the  calling  of  a  convention;  it  may  specify  that  separate 
amendments  may  be  initiated  by  the  legislature,  but  if  there 
is  no  prohibition  respecting  the  convention  as  an  agency  for 
the  general  revision  of  the  constitution,  there  is  the  unmis- 
takable implication  that  this  agency  may  be  employed.21  Up 
to  1887,  Judge  Jameson  found  that  in  the  history  of  our 
practice  twenty-seven  conventions  had  met  without  special 
authority  for  their  assembling  having  been  contained  in  the 
State  constitutions  22  and  since  that  time  at  least  two  conven- 
tions have  been  added  to  the  list, — Mississippi's  in  1890,  and 
Louisiana's  in  1898.  Our  custom  has  so  well  established  the 
rule  upon  this  point,  that  it  is  too  late  now  to  question  the 
legitimacy  of  these  conventions.23 

The  converse  of  this  proposition,  as  we  will  see  on  a  later 
page,  is  not  true,  for  there  is  no  inferable  power  resting  with 
the  Legislature  to  change  the  constitution  in  a  smaller  way, 
unless  definite  provisions  can  be  pointed  to  in  that  instru- 
ment, to  which  the  right  to  exercise  such  a  prerogative  may 
be  traced  back.  The  legislature  when  it  acts  alone,  or  in  con- 
junction with  the  electors  in  adopting  amendments  to  the 
constitution,  does  so  in  an  unusual  capacity.  It  acts  as  a 
convention,  not  as  a  legislature,  and  it  must  be  able  to  justify 
its  course  at  every  step.  It  serves  us  thus  on  sufferance  only, 
and  it  has  won  its  title  to  this  share  in  constitutional  law- 
making,  because  it  is  realized  that  the  great,  long,  and  de- 
tailed constitutions  of  to-day  must  be  frequently  changed, 
and  some  method  must  be  at  hand,  simpler  and  less  expen- 
sive than  calling  delegates  together  from  all  parts  of  the 
State,  for  the  special  purpose  of  making  these  minor  changes 
in  the  language  and  spirit  of  the  instrument.24 

Now,  when  the  legislature  is  not  specifically  prohibited 

21  Jameson,  p.  211. — "It  must  be  laid  down  as  among  the  established 
prerogatives  of  our  general  assemblies  that  the  constitution  being  silent, 
whenever  they  deem  it  expedient  they  may  call  conventions  to  revise  the 
fundamental  law." 

"Ibid.,   p.  210.  ™Ibid.,  p.  602. 

™Ibid.,  pp.  549,  621,  622. 


CONSTITUTIONAL  AMENDMENT  BY  CONVENTION    139 

from  calling  a  convention  (a  case  of  only  theoretical  inter- 
est), and  it  acts  upon  authority  derived  from  general  impli- 
cation alone,  what  direct  part  are  the  people  to  play  in  the 
proceeding  ?  May  the  referendum  respecting  the  expediency 
of  issuing  the  call  be  dispensed  with  by  the  legislature? 
The  weight  of  authority  is  distinctly  on  the  side  of  a  submis- 
sion of  this  question  to  the  people.  The  opinion  of  the  New 
York  Council  of  Revision,  in  1820,  which  is  cited  so  fre- 
quently,— that  body,  clothed  with  a  power  later  con- 
ferred in  nearly  all  our  States  upon  the  Governor  alone,  with- 
out whose  assent  to  a  bill,  none  could  become  a  law  except 
by  a  two-thirds  vote  over  the  veto, — is  against  a  convention 
assembled  at  the  sole  instance  of  the  legislature.  The  New 
York  Constitution  of  1777,  which  it  was  proposed  should  be 
changed,  contained  no  word  concerning  the  method  of  calling 
a  convention,  nor  did  it  seem  to  contemplate  the  case  arising 
when  such  a  body  would  need  to  be  convened.  The  Council, 
nevertheless,  unhesitatingly  declared  that  it  was  the  duty  of 
the  legislature  to  submit  the  question,  just  as  it  was  its  pre- 
rogative in  general  to  set  the  machinery  in  motion  for  a  con- 
vention to  assemble,  despite  the  Constitution's  silence  in  ref- 
erence to  that  larger  point.  Because  the  legislature  had 
failed  to  provide  for  a  poll  of  the  people,  the  Council  had 
vetoed  the  bill,  and  the  former  acting  in  pursuance  of  better 
advice,  promptly  passed  a  measure  to  refer  the  matter  to  the 
electors  of  the  State. 

Doubtless  it  is  within  the  power  of  the  legislature,  when 
the  constitution  contains  no  specific  directions  to  the  con- 
trary, to  call  a  convention,  without  first  acquainting  itself 
with  the  sense  of  the  people  on  this  subject.  Even  in  those 
States  in  which  the  constitution  is  not  wholly  silent  on  the 
point,  and  a  method  is  prescribed  for  calling  a  convention, 
though  without  a  definite  command  as  to  the  submission  of 
the  question  to  popular  vote,  the  legislature  may  undoubtedly 
omit  this  latter  feature  of  the  process.  Perhaps  there  is  here 
an  added  implication  that  the  plebiscite  is  unnecessary,  but 
lacking  the  constitutional  mandate  to  dispense  with  the  vote, 


140  THE  REFERENDUM  IN  AMERICA 

the  legislature  may,  of  course,  require  the  popular  sanction, 
and  if  it  desires  to  keep  itself  in  line  with  all  our  historical 
tendencies,  it  will  make  no  effort  to  evade  what  must  be  con- 
sidered to  be  its  manifest  duty  in  the  case.  For  instance,  the 
Constitution  of  Georgia  declares  that  "  no  convention  of  the 
people  shall  be  called  by  the  General  Assembly  to  revise, 
amend,  or  change  this  Constitution,  unless  by  the  concurrence 
of  two-thirds  of  all  the  members  of  each  house  of  the  General 
Assembly  ".25  It  contains  no  command  to  submit,  nor  pro- 
hibition from  submitting  to  the  electors  by  way  of  the  refer- 
endum, the  question  of  the  expediency  of  the  call,  and  with- 
out a  doubt,  the  legislature  can  refer  the  subject  to  them  or 
not,  at  its  own  pleasure.26 

Of  one  thing  there  seems  to  be  some  certainty,  if  our  prac- 
tice is  closely  studied  and  the  lessons  which  it  teaches  are 
rightly  viewed  and  considered,  and  it  is  this — that  the  peo- 
ple should  be  directly  consulted  at  some  stage  in  the  process 
of  constitutional  change.  One  or  other  of  the  two  refer- 
enda, either  the  preliminary  vote  to  decide  as  to  the  expedi- 
ency of  calling  the  convention,  or  the  vote  upon  the  accept- 
ance or  rejection  of  the  whole  constitution  after  the  conven- 
tion has  framed  it,  should  be  taken.27  If  we  look  at  those 
States  in  which  constitutions  have  recently  been  adopted 
without  a  reference  of  the  instruments  to  popular  vote,  Mis- 
sissippi, South  Carolina,  Delaware,  Kentucky  (in  part),  and 
Louisiana,  there  is  but  one  case,  that  of  Mississippi  in  which 
the  legislature,  or  the  legislature  and  convention  acting  to- 
gether, took  the  matter  wholly  out  of  the  people's  hands,  and 

85  Constitution  of  1877,  art.  xiii,  sec.   i,  par.  2. 

28  A  usual  form  in  which  to  submit  this  subject,  since  more  modern 
ballot  systems  have  been  introduced,  is  as  follows  :  "  For  the  [or  a]  Con- 
vention ",  "  Against  the  [or  a]  Convention ",  as  in  California  and 
Tennessee ;  "  Shall  there  be  a  Constitutional  Convention — Yes ",  or 
"  No  ",  a  space  for  the  voter's  mark  being  left  after  either  word,  as  in 
Minnesota ;  "  For  a  general  revision  of  the  Constitution — Yes "  or 
"For  a  general  revision  of  the  Constitution — No",  as  in  Michigan; 
"  Constitutional  Convention — Yes  "  or  "  Constitutional  Convention — 
No  ",  as  in  Ohio. 

27  Cf.  Jameson,  op.  cit.,  p.  494. 


CONSTITUTIONAL  AMENDMENT  BY  CONVENTION    141 

withdrew  from  them  all  part  in  the  proceedings,  both  before 
and  after  the  convention  met.  It  is  true  that  in  South  Caro- 
lina, Kentucky  and  Delaware,  the  old  Constitutions  required 
that  conventions  should  be  called  only  after  a  polling  of  the 
people,  arid  in  Kentucky  the  vote  had  to  be  taken  on  two  oc- 
casions, but  the  fact  remains  that  it  is  now  only  in  the  rarest 
instance  that  all  our  agents  which  co-operate  to  this  end,  fail 
us,  and  a  constitution  is  added  to  the  American  collection, 
without  the  people  having  said  by  yea  or  nay,  somehow,  at 
sometime,  whether  or  not  they  are  ready  to  make  this  change 
in  their  organic  scheme  of  government. 


CHAPTER  VI 

THE    AMENDMENT    OF    CONSTITUTIONS    BY    THE    LEGISLATIVE 

METHOD 

ANOTHER  method  of  amending  the  constitution,  the  legis- 
lative method,  remains  to  be  specifically  considered.  It  was 
the  practice  in  England,  whence  we  got  so  much  that  is  valu- 
able in  our  political  forms,  to  receive  constitutional  as 
well  as  statutory  law  from  Parliament  or  the  legislature. 
We  had  introduced  Montesquieu's  trinity  of  English  agents, 
the  legislative,  executive  and  judicial  departments  of  govern- 
ment, each  balanced  against  and  checking  the  two  others. 
But  we  were  to  go  farther,  and  bring  upon  the  scene  a  fourth 
brake  upon  the  wheel,  the  convention,  differentiating  con- 
stitutional and  ordinary  law,  not  only  in  its  intrinsic  char- 
acter, but  as  well  in  respect  of  the  source  from  which  it  was 
•  derived.  The  legislature  for  a  time  in  this  country,  was  al- 
most entirely  without  power  in  the  matter  of  constitutional 
law-making,  except  as  the  agent  to  call  the  convention  to- 
gether. In  those  early  cases  in  which  the  legislature  itself 
attempted  to  act  as  a  convention,  the  constitutions  were  con- 
sidered to  have  been  irregularly  adopted,  and  therefore  in- 
valid.1 It  came  to  be  pretty  generally  understood  that  what 
the  legislature  was  not  competent  to  make,  it  also  was  not  a 
suitable  authority  to  break  down  or  change.  If  experience 
should  later  show  that  amendment  was  needed,  it  was  plainly 
stated,  or  fairly  implied  in  the  constitution,  that  the  mode  at 
hand  was  to  call  another  convention.  The  Constitutions  of 
1776  in  Delaware  and  Maryland,  indeed,  gave  to  the  legis- 
lature rather  general  powers  to  change  those  instruments 
under  certain  safeguards,  calculated  to  prevent  hasty  and  ill- 

1  Ante,  p.  74. 

142 


AMENDMENT  BY  THE  LEGISLATIVE  METHOD    143 

considered  action.  In  the  Maryland  Constitution,  it  was 
specified  "  that  this  form  of  government  and  the  Declaration 
of  Rights,  and  no  part  thereof  shall  be  altered,  changed  or 
abolished,  unless  a  bill  so  to  alter,  change  or  abolish  the  same 
shall  pass  the  General  Assembly,  and  be  published  at  least 
three  months  before  a  new  election,  and  shall  be  confirmed  by 
the  General  Assembly  after  a  new  election  of  delegates,  in 
the  first  session  after  such  new  election  ".  Here  was  a  plan 
for  amendment  by  simple  majority  vote  of  two  successive 
legislatures,  and  in  lieu  of  the  referendum  there  was  intro- 
duced the  device  of  publishing  the  proposals  for  the  consider- 
ation of  the  people  prior  to  the  election  of  the  members  of  the 
General  Assembly  which  should  pass  upon  them  the  second 
time.2 

In  Delaware  the  Constitution  of  1776  prescribed,  with  the 
exception  of  some  cases  not  to  the  purpose  here,  that  no  part 
of  the  Constitution  should  ever  be  "  altered,  changed  or 
diminished  without  the  consent  of  five  parts  in  seven  of  the 
Assembly,  and  seven  members  of  the  Legislative  Council  ".3 
Thus  of  the  Constitutions  of  the  Revolutionary  time  in  those 
of  two  of  the  original  States,  the  legislature  was  created  the 
agent  for  amending  the  Constitution.4  In  the  Constitutions 
of  New  Jersey,  New  York,  North  Carolina  and  Virginia, 
there  were  no  provisions  on  this  subject.  In  New  Hamp- 
shire, Massachusetts  and  Georgia,  the  convention  method 
was  adopted,  as  it  was  also  in  Pennsylvania  with  the  addition 
of  that  odd  feature,  the  Council  of  Censors.  As  silence  is 
an  inference  in  favor  of  the  convention,  there  were  then  but 
two  States  of  the  eleven  (the  other  two  needed  to  make  up 
the  "  original  thirteen  "  being  Connecticut  and  Rhode  Island, 
and  they  retained  their  English  charters)  which  held  the  leg- 
islature to  be  competent  in  amendment,  even  with  respect 

2  Art.  lix.         3  Art.  xxx. 

4  The  example  of  South  Carolina  in  1778  may  be  disallowed,  for  the 
Supreme  Court  of  that  State  decided  that  as  the  Constitutions  of  1776 
and  1778  had  both  been  framed  by  the  legislature,  the  latter  could  at 
its  own  pleasure  change  them  again. 


H4  THE  REFERENDUM  IN  AMERICA 

to  minor  details.  It  is  true,  of  course,  as  Judge  Jameson 
has  very  clearly  shown,  that  these  original  Constitutions,  if 
we  except  those  of  Massachusetts  and  New  Hampshire, 
which  adopted  their  instruments  near  or  after  the  conclusion 
of  the  war,  were  merely  intended  to  serve  temporary  ends, 
until  independence  should  be  secured,  if,  indeed,  that  much 
desired  result  could  be  attained.  The  effort  for  independent 
government  failing,  the  constitutions  would  have  had  little 
future  value  anyhow,  not  more  than  those  which  were  framed 
by  the  Secession  conventions  in  the  Southern  States  at  the 
outbreak  of  the  great  Civil  War.  There  was  little  thought 
then  of  how  the  constitutions  should  be  changed;  the  press- 
ing question  was  to  establish  them,  adopt  them  and  live 
under  them.  Systems  by  which  to  amend  the  instruments 
of  government  were  to  be  devised  at  a  somewhat  later  date. 

The  need  was  soon  felt,  and  it  had  been  prophetically 
anticipated  in  Maryland  and  Delaware  in  1776,  for 
some  easier  mode  of  amendment  than  by  assembling  a  new. 
convention.  The  legislature  was  holding  sessions  fre- 
quently. While  it  was  engaged  in  its  own  specific  line  of 
work,  it  might  too  act  in  the  capacity  of  a  convention  in 
adopting,  or  at  any  rate  in  proposing  for  adoption,  such 
amendments  to  the  constitution  as  might  seem  to  be  required 
from  time  to  time  for  the  good  of  the  State.  From  the  be- 
ginning it  was  understood  that  in  enacting  constitutional 
law,  even  to  this  extent,  the  legislature  was  stepping  outside 
of  its  own  rightful  province.  It  ought  to  be  more  difficult 
for  the  legislature  to  amend  the  constitution  than  to  pass  an 
ordinary  law.  Delaware,  therefore,  had  specified  that 
changes  in  her  Constitution  should  be  made  only  with  "  the 
consent  of  five  parts  in  seven  of  the  Assembly,  and  seven 
members  of  the  Legislative  Council  ".5  Maryland  declared 
that  the  legislature,  if  it  should  desire  to  alter  the  Constitu- 
tion of  the  State,  must  announce  its  intention  to  the  people 
by  publication,  and  twice  approve  its  proposition  for  amend- 
ment, though  a  simple  majority  vote  on  each  passage  suf- 

5  Art.  xxx. 


AMENDMENT  BY  THE  LEGISLATIVE  METHOD    145 

ficed.  In  the  Constitution  of  South  Carolina,  in  1790,  a 
somewhat  similar  provision  was  introduced.  Amendments 
were  to  be  proposed  in  one  legislature,  published  for  the  in- 
formation of  the  people  previous  to  the  next  election  of  rep- 
resentatives, being  then  confirmed  by  the  next  legislature.  A 
two-thirds  vote  "  of  the  whole  representation "  in  both 
branches  was  necessary  at  each  passage,  however,  a  condi- 
tion tending  to  make  it  still  more  difficult  for  the  legislature 
to  exercise  its  amending  power.6  A  provision  almost  the 
exact  counterpart  of  that  found  in  South  Carolina, 
was  incorporated  in  the  Georgia  Constitution  of  i/pS,7 
and  the  second  Constitution  of  Delaware  adopted  in  1792 
arranged  for  its  own  amendment  by  the  legislative  mode, 
though  again  in  a  slightly  different  form,  viz:  a  two-thirds 
majority  vote  of  each  house  of  one  legislature,  "  with  the 
approbation  of  the  Governor  ",  the  publication  of  the  pro- 
posals for  popular  consideration,  and  a  three-fourths  vote  of 
each  branch  of  the  next  legislature.8 

Constitutional  amendment  by  legislature  originated  in  the 
South,  and  there  had  its  most  notable  early  developments. 
But  in  no  case  did  the  amendment  come  nearer  to  the  people 
than  in  printing  and  circulating  it  for  their  consideration, 
three  or  six  months  before  the  next  election  for  representa- 
tives whose  duty  it  wrould  be  to  ratify  the  proposed  change. 
The  rejected  Constitution  of  New  Hampshire  of  1779,  con- 
tained a  provision  for  its  own  amendment,  which  specified 
that  "  the  General  Court  shall  have  no  power  to  alter  any  part 
of  this  Constitution,  but  in  case  they  should  concur  in  any 
proposed  alteration,  amendment  or  addition,  the  same  being 
agreed  to  by  a  majority  of  the  people,  shall  become  valid  ".9 
The  Constitutions  of  New  Hampshire  adopted  in  1784  and 
1792,  provided  that  alterations  in  the  constitution  should  be 
"  approved  by  two-thirds  of  the  qualified  voters  present,  and 

'Constitution  of   1790,  art.  xi.         T  Art.  iv,  sec.   15. 
8  Constitution  of   1792,  art.  x. 

8  Sec.  32  of  the  Constitution,  which  is  printed  in  the  Collections  of  the 
New  Hampshire  Historical  Society,  Vol.  IV,  p.  154. 


146  THE  REFERENDUM  IN  AMERICA 

voting  on  the  subject  "  at  the  various  town  meetings,  but  the 
changes  which  were  contemplated  were  to  come  from  a  con- 
vention and  not  from  the  legislature.  It  is  Connecticut  in 
1818,  when  she  abandoned  her  old  charter  and  adopted  her 
first  Constitution,  that  won  for  herself  the  historical  distinc- 
tion of  having  originated  the  plebiscital  method  which  was 
destined  soon  to  meet  with  general  application  throughout 
the  States.  It  was  the  New  England  system  of  a  popular 
vote  upon  constitutions  or  parts  of  constitutions,  received 
from  conventions,  grafted  on  to  the  Maryland  scheme  of 
amendment  by  legislature,  which  was  generally  coming  into 
vogue  in  the  South.  Instead  of  simply  publishing  the  propo- 
sition "  for  the  consideration  of  the  people  ",  the  people  were 
to  have  the  whole  subject  directly  referred  to  them,  so  that 
each  elector  might  say  for  himself  whether  he  approved  of 
the  amendment  or  disapproved  of  it.  Moreover  the  poll  of 
the  citizens  was  not  introduced  between  the  two  votes  of  the 
legislature,  a  system  which  soon  came  into  favor  in  the 
Southern  States,  but  after  that  body  had  both  times  passed 
the  measure.  To  the  people  the  last  word  was  given.  The 
Connecticut  plan  did  not  call  for  simple  majority  votes  twice 
repeated,  nor  yet  for  two-thirds  majorities,  but  as  if  to  strike 
another  compromise  among  the  various  precedents  at  hand, 
the  Constitution  prescribed  that  at  the  first  passage  a  simple 
majority  should  suffice^  and  curiously,  of  but  one  chamber 
(the  House  of  Representatives)  while  at  the  second  passage 
a  two-thirds  vote  in  each  of  the  two  houses  would  be  neces- 
sary. A  difficulty  was  averted  in  the  subsequent  ratifying 
vote  of  the  people,  by  providing  that  a  simple  majority  of 
those  voting,  rather  than  some  larger  number,  should  de- 
termine the  point  as  to  the  approval  of  the  amendment. 
This  interesting  Connecticut  provision  is,  in  full,  as  follows : 
"  Whenever  a  majority  of  the  house  of  representatives  shall 
deem  it  necessary  to  alter  or  amend  this  Constitution,  they 
may  propose  such  alterations  and  amendments,  which  pro- 
posed amendments  shall  be  continued  to  the  next  General 
Assembly  and  be  published  with  the  laws  which  may  have 


AMENDMENT  BY  THE  LEGISLATIVE  METHOD    147 

been  passed  at  the  same  session;  and  if  two-thirds  of  each 
house  at  the  next  session  of  said  Assembly,  shall  approve 
the  amendments  proposed  by  yeas  and  nays,  said  amend- 
ments shall  by  the  secretary  be  transmitted  to  the  town 
clerk  in  each  town  in  the  State,  whose  duty  it  shall  be  to  pre- 
sent the  same  to  the  inhabitants  thereof  for  their  considera- 
tion at  a  town  meeting,  legally  warned  and  held  for  that  pur- 
pose, and  if  it  shall  appear  in  a  manner  to  be  provided  by  law 
that  a  majority  of  the  electors  present  at  such  meetings  shall 
have  approved  such  amendments,  the  same  shall  be  valid,  to 
all  intents  and  purposes,  as  a  part  of  this  Constitution."  10 

The  Massachusetts  Convention  of  1820,  of  which  Daniel 
Webster  was  a  member,  he  himself  having  had  a  part  in  giv- 
ing form  to  this  particular  provision,  adopted  the  Connecticut 
plan  with  but  slight  modification.  This  Convention  did  not 
frame  an  entire  new  constitution,  but  simply  submitted  to  the 
electors  of  the  State  a  number  of  proposals  for  the  amend- 
ment of  the  instrument.  The  Constitution  having  been  de- 
ficient in  respect  of  a  method  for  its  own  change,  in  case  any 
"  specific  and  particular  amendment  or  amendments  "  should 
be  needed,  the  example  which  Connecticut  had  set  the  coun- 
try was  studied  with  interest  in  Massachusetts.  This  sec- 
tion as  it  was  proposed  by  the  Massachusetts  Convention  in 
1820-21,  and  was  ratified  by  the  people  in  1822,  specified  that 
the  proposal  for  amendment  should  be  passed  by  a  majority 
vote  of  the  Senate,  and  a  two-thirds  vote  of  the  House  of 
Representatives  of  one  legislature,  and  a  like  vote  of  the  two 
branches  of  the  next  succeeding  legislature,  when,  if  it  were 
referred  to  the  people,  and  a  majority  of  the  qualified  electors 
voting  on  the  subject  should  approve  it,  it  should  become  a 
part  of  the  Constitution  of  the  State.11 

10  Constitution  of  1818,  art.  xi. 

11  Amendments  to   Massachusetts  Constitution  of   1780,   art.   ix.     The 
text   of  the   provision   is   as   follows :     "  If   at   any   time   hereafter   any 
specific  and  particular  amendment  or  amendments  to  the  Constitution 
be  proposed  in  the  General  Court,  and  agreed  to  by  a  majority  of  the 
senators   and   two-thirds   of  the   members   of  the   house   of   representa- 
tives present  and  voting  thereon,  such  proposed  amendment  or  amend- 


148  THE  REFERENDUM  IN  AMERICA 

The  New  York  Convention  which  met  at  about  the  same 
time,  in  1821,  incorporated  in  the  Constitution  which  it 
framed,  a  similar  provision  for  the  amendment  of  the  instru- 
ment. There  was  here  once  more  a  slight  variation  in  re- 
spect of  terms  and  forms,  but  the  referendum  was  again 
made  to  follow  the  vote  of  two  successive  legislatures.  A 
simple  majority  vote  of  both  houses  of  the  first  legislature 
sufficed,  while  a  two-thirds  majority  vote  in  both  houses  was 
necessary  on  the  second  passage,  in  order  to  bring  the  sub- 
ject to  the  people.12 

In  the  meantime,  about  a  year  after  the  Connecticut  plan 
of  amendment  was  adopted,  Alabama  being  admitted  in  1819 
to  the  Union  of  States  brought  with  her  a  Constitution  con- 
taining a  provision  for  its  owrn  alteration  of  still  a  different 
kind.  It  was  a  modification  of  the  Maryland  scheme  of  1776, 
with  a  plebiscite  introduced  after  the  proposal  came  from  the 

ments  shall  be  entered  on  the  journals  of  the  two  houses  with  the  yeas 
and  nays  taken  thereon,  and  referred  to  the  General  Court  then  next 
to  be  chosen,  and  shall  be  published ;  and  if  in  the  General  Court 
then  next  chosen,  as  aforesaid,  such  proposed  amendment  or  amend- 
ments shall  be  agreed  to  by  a  majority  of  the  senators,  and  two-thirds 
of  the  members  of  the  house  of  representatives  present  and  voting 
thereon,  then  it  shall  be  the  duty  of  the  General  Court  to  submit  such 
proposed  amendment  or  amendments  to  the  people,  and  if  they  shall 
be  approved  and  ratified  by  a  majority  of  the  qualified  voters  voting 
thereon  at  meetings  legally  warned  and  holden  for  that  purpose,  they 
shall  become  part  of  the  Constitution  of  this  Commonwealth." 

13  Constitution  of  1821,  art.  viii,  sec.  i.  This  provision  was  as  follows: 
"  Any  amendment  or  amendments  to  this  Constitution  may  be  proposed 
in  the  Senate  or  Assembly,  and  if  the  same  shall  be  agreed  to  by  a 
majority  of  the  members  elected  to  each  of  the  two  houses,  such  pro- 
posed amendment  or  amendments  shall  be  entered  on  their  journals, 
with  the  yeas  and  nays  taken  thereon,  and  referred  to  the  legislature 
then  next  to  be  chosen ;  and  shall  be  published  for  three  months  pre- 
vious to  the  time  of  making  such  choice ;  and  if  in  the  legislature  next 
chosen,  as  aforesaid,  such  proposed  amendment  or  amendments  shall  be 
agreed  to  by  two-thirds  of  all  the  members  elected  to  each  house,  then 
it  shall  be  the  duty  of  the  legislature  to  submit  such  proposed  amend- 
ment or  amendments  to  the  people,  in  such  manner  and  at  such  time 
as  the  legislature  shall  prescribe  ;  and  if  the  people  shall  approve  and 
ratify  such  amendment  or  amendments  by  a  majority  of  the  electors 
qualified  to  vote  for  members  of  the  legislature,  voting  thereon,  such 
amendment  or  amendments  shall  become  part  of  the  Constitution." 


AMENDMENT  BY  THE  LEGISLATIVE  METHOD    M9 

legislature  the  first  time,  and  before  it  was  submitted  to  that 
body  for  final  confirmation.13 

Maine,  forging  ahead  of  the  parent  State,  Massachusetts, 
from  which  she  had  just  voted  to  separate,  in  order  to  or- 
ganize an  independent  government  adopted  in  her  Consti- 
tution, framed  in  1819,  a  scheme  of  amendment  by  legisla- 
tive means,  which  in  breaking  the  way  to  a  future  type,  is 
entitled  to  rank  with  the  rather  famous  Connecticut  plan. 
Maine,  before  Massachusetts  and  New  York  had  yet  gath- 
ered their  delegates  together  to  discuss  the  question,  had 
swung  over  to  one  legislature  instead  of  two,  simplifying  the 
whole  process.  A  two-thirds  vote  of  both  houses  of  the 
legislature  was  required  to  pass  the  proposal  but  everything 
else  was  left  to  the  people,  a  simple  majority  of  the  qualified 
voters  who  chose  to  express  an  opinion  on  the  subject  being 
competent  to  declare  the  popular  will.  This  section  of  the 
Constitution  of  Maine,  still  in  force  in  that  State,  is  as 
follows : 

"  The  legislature  whenever  two-thirds  of  both  houses  shall 
deem  it  necessary,  may  propose  amendments  to  this  Constitu- 
tion, and  when  any  amendment  shall  be  so  agreed  upon,  a 
resolution  shall  be  passed  and  sent  to  the  selectmen  of  the 
several  towns,  and  the  assessors  of  the  several  plantations, 
empowering  and  directing  them  to  notify  the  inhabitants 
of  their  respective  towns  and  plantations,  in  the  manner 
prescribed  by  law,  at  their  next  annual  meetings  in  the  month 
of  September,  to  give  in  their  votes  on  the  question,  whether 
such  amendment  shall  be  made ;  and  if  it  shall  appear  that  a 
majority  of  the  inhabitants  voting  on  the  question  are  in 
favor  of  such  amendment,  it  shall  become  a  part  of  this  Con- 
stitution." 14 

It  was  the  example  of  such  States  as  Massachusetts  and 
New  York  that  turned  the  balance  in  favor  of  the  legislative 
mode  of  amendment  in  general,  and  of  the  system  embodying 

18  Constitution  of   1819,  final  paragraph  preceding  the  "Schedule". 
14  Art.  x,  sec.  2,  of  the  Amended  Constitution,  and  article  x,  sec.  4,  of 
the  original  Constitution. 


15°  THE  REFERENDUM  IN  AMERICA 

the  referendum  in  particular.  After  these  great  States  had 
spoken,  the  development  was  rapid  and  natural  until  we  have 
come  to  the  point  to-day,  when  there  is  not  a  State  Consti- 
tution among  all  our  forty-five,  except  New  Hampshire's, 
which  does  not  contain  some  kind  of  a  provision  respecting 
its  own  amendment  through  legislative  initiative,  and  with 
but  one  exception,  Delaware,  there  is  a  later  reference  of  the 
subject  to  the  people.15  Delaware  by  her  Constitution  of 
1831,  long  enjoyed  the  reputation  of  being  the  only  State  in 
the  Union  which  amended  her  fundamental  law  without  di- 
rectly consulting  the  people  on  the  different  points  involved, 
and  she  has  chosen  to  hold  to  this  feature  of  her  policy,  since 
by  her  new  Constitution  of  1897,  there  is  still  no  referendum 
on  amendments,  the  legislature  changing  the  instrument 
from  time  to  time,  practically  by  the  same  process  invented 
by  the  Maryland  Convention  of  I776.16 

In  all  the  States  amending  their  constitutions  by  legislature 
ad  referendum,  that  is,  in  forty-three  Commonwealths,  the 
people  are  the  final  arbiters,  except  in  a  single  instance.  This 
time  it  is  South  Carolina  that  occupies  the  isolated  place, 
clinging,  even  in  her  new  Constitution  of  1895,  to  the  old 
Southern  system  introduced  into  Alabama  in  1819,  of  bring- 
ing the  people  in,  not  as  the  last  ratifier,  but  as  a  mere  adviser 
after  the  amendment  has  once  passed  the  legislature,  and 
before  it  has  yet  gone  to  that  body  a  second  time.  In  such  a 

15  The  provision  relating  to  this   subject  in  Delaware   is  as  follows: 
"Any  amendment  or  amendments  to  this  Constitution  may  be  proposed 
in   the   senate   or   house   of   representatives,    and   if   the   same   shall   be 
agreed  to  by  two-thirds  of  all  the  members  elected  to  each  house,  such 
proposed   amendment   or   amendments   shall   be   entered    on   their   jour- 
nals, with  the  yeas  and  nays  taken  thereon,  and  the  secretary  of  state 
shall  cause  such  proposed  amendment  or  amendments  to  be  published 
three  months  before  the  next  general  election  in   at  least  three  news- 
papers in  each  county  in  which  such  newspapers  shall  be  published,  and 
if  in  the  General  Assembly  next  after  the  said  election,  such  proposed 
amendment  or  amendments   shall  upon   a  yea  and  nay  vote  be  agreed 
to  by  two-thirds  of  all  the  members   elected  to   each  house,   the   same 
shall  thereupon  become  part  of  this  Constitution." — Constitution  of  1897, 
art.  xvi,  sec.  i. 

16  Cf.  Constitution  of  Maryland,   1776,  art.  lix. 


AMENDMENT  BY  THE  LEGISLATIVE  METHOD    15* 

case,  the  people  are  clearly  not  the  enacting  power  at  all; 
that  power  still  rests  with  the  legislature,  which  asks  for  an 
expression  of  public  opinion,  and  then  heeds  the  popular 
instruction  or  not,  as  fits  its  own  mood.17 

In  the  forty-two  States  remaining,  some  interesting  ten- 
dencies are  to  be  observed  and  noted.  In  twenty-seven 
States  it  has  now  come  about  that  it  is  sufficient  if  the  amend- 
ments pass  a  single  legislature  before  they  are  voted  on  by  the 
people.  This  is  following  the  example  of  Maine,  in  1819, 
and  in  this  class  are  included  all  the  new  States  of  the  West 
except  North  Dakota ;  i.  e.,  Utah,  Idaho,  Montana,  Wyo- 
ming, Washington  and  South  Dakota.  There  are,  there- 
fore, only  fifteen  States  remaining,  in  which  amendments 
must  by  varying  majorities  twice  pass  the  legislature,  prior 
to  their  submission  to  popular  vote. 

Of  the  first  class  of  twenty-seven  States,  seventeen  require 
that  any  proposed  amendment  shall  pass  the  legislature  by  a 
two-thirds  vote.  These  are  Alabama,  California,  Colorado, 
Georgia,  Idaho,  Illinois,  Kansas,  Louisiana,  Maine,  Michi- 
gan, Mississippi,  Montana,  Texas,  Utah,  Washington,  West 
Virginia  and  Wyoming.  Here  again  there  is  room  for  dif- 
ference as  to  the  meaning  of  the  two-thirds  vote.  In  most 
of  the  States  it  is  clearly  stated  that  this  shall  be  two-thirds 
"  of  all  the  members  elected  to  each  of  the  two  houses  ".  In 
others  the  phraseology  is  two-thirds  "  of  all  the  members 
of  each  of  the  two  houses  ",  while  in  a  few,  as  Alabama, 
Maine  and  Mississippi,  it  is  simply  two-thirds  "  of  each 
house  ",  which  seems  to  mean  two-thirds  of  those  members 
present  and  voting  on  the  subject, — a  very  different  matter. 
Four  States,  Arkansas,  Minnesota,  Missouri  and  South  Da- 
kota, by  their  present  Constitutions,  find  passage  by  a  simple 
majority  instead  of  a  two-thirds  vote  sufficient.  Here  again, 
the  rule  is  a  majority  "  of  the  members  elected  to  each  of  the 
two  houses  ",  though  in  Minnesota  the  Constitution  calls  for 
a  majority  "  of  both  houses  of  the  legislature  ".  In  six 
States,  Florida,  Kentucky,  Maryland,  Nebraska,  North  Caro- 

17  See  Constitution  of  South  Carolina  of  1895,  art.  xvi,  sec.   i. 


152  THE  REFERENDUM  IN  AMERICA 

lina  and  Ohio,  a  three-fifths  vote  of  the  legislature  is  neces- 
sary to  refer  amendments  to  popular  vote.  Once  more  there 
is  ambiguity  in  North  Carolina,  where  the  Constitution 
speaks  loosely  of  three-fifths  "  of  each  house  of  the  General 
Assembly  ". 

Of  the  second  general  class,  comprising  fifteen  States,  in 
which  proposed  amendments  must  pass  two  legislatures  be- 
fore going  to  the  people,  the  greater  number  of  those  still 
adhering  to  this  system,  or  eleven, — Indiana,  Iowa,  Nevada, 
New.  Jersey,  New  York,  North  Dakota,  Oregon,  Pennsyl- 
vania, Rhode  Island,  Virginia  and  Wisconsin,  find  that  a 
majority  vote  at  each  passage  satisfies  every  requirement. 
The  very  fact  of  a  repetition  of  the  vote  being  required,  is 
regarded  as  a  sufficient  check  upon  a  possible  disposition  on 
the  legislature's  part  to  "  tinker  "  with  the  Constitution.  In 
all  these  States,  the  Constitutions  uniformly  provide  that  the 
passage  shall  be  by  a  majority  of  all  the  members  elected  to 
the  two  houses. 

The  remaining  four  States  in  this  general  class  do  not  ad- 
mit of  any  grouping.  Connecticut  retains  the  same  process 
she  led  off  with  in  1818;  namely,  a  vote  of  "a  majority  of 
the  house  of  representatives  "  of  one  legislature,  and  the  ap- 
proval of  "  two-thirds  of  each  house  "  in  the  next  General 
Assembly.18  Massachusetts,  clinging  to  the  method  which 
she  introduced  in  1821,  requires  that  propositions  for  amend- 
ment must  have  received  a  vote  "  of  a  majority  of  the  sen- 
ators, and  two-thirds  of  the  members  of  the  house  of  repre- 
sentatives present  and  voting  thereon  "  in  two  successive 
legislatures.19  Vermont,  in  1870,  by  an  amendment  to  her 
old  Constitution,  by  which  the  system  of  septennial  meetings 
of  the  so-called  Council  of  Censors  was  abolished,  brought 
into  our  practice  another  anachronism.  There  amendments 
prior  to  their  reference  to  the  people  must  be  approved  in  the 
senate  "  by  a  vote  of  two-thirds  of  its  members  "  and  be 
11  concurred  in  by  a  majority  of  the  members  of  the  house  of 

"Article  xi. 

"Article   ix   of  the  Amendments. 


AMENDMENT  BY  THE  LEGISLATIVE  METHOD    153 

representatives  "  of  one  legislature,  being  then  confirmed  by 
"  a  majority  of  the  representatives  of  the  next  following  Gen- 
eral Assembly  ".  Moreover,  as  if  to  adhere  to  a  tradition 
in  the  matter  of  a  periodic  system,  the  legislature  in  Vermont 
may  only  propose  amendments  at  specified  intervals  of  ten 
years,  in  1880,  1890,  1900,  etc.20  Finally  Tennessee,  reaffirm- 
ing in  her  present  Constitution,  which  dates  from  1870,  an 
old  rule,  introduced  in  the  practice  of  that  State  in  1834, 
provides  for  a  vote  of  "  a  majority  of  all  the  members  elected 
to  each  of  the  two  houses  "  of  one  legislature,  and  a  concur- 
ring vote  of  two-thirds  "  of  all  the  members  elected  to  each 
house  "  of  the  next  General  Assembly.21 

As  for  the  referendum  itself  in  the  forty-two,  or  forty-three 
States,  if  we  include  South  Carolina,  in  the  greater  number 
of  cases  a  simple  majority  of  the  qualified  electors  voting  on 
the  amendment  suffices  for  ratification,  but  there  are  varia- 
tions in  the  language  of  the  Constitutions,  which  have  led  to 
great  confusion.  Judicial  opinions  have  been  called  out  on 
the  subject,  but  these  themselves  are  conflicting,  and  the 
procedure  is  so  diverse  that  it  is  scarcely  possible  to  make 
a  classification.  Mr.  Bryce  gave  up  the  task  in  despair,  and 
other  students  of  the  subject  will  be  disposed,  too,  to  think 
it  a  labor  quite  out  of  proportion  to  the  return.  A  "  ma- 
jority "  in  a  certain  context,  may  mean  a  majority  of  all 
those  who  are  qualified  to  vote,  including  the  "  stay-at- 
homes  ".  Again  it  may  mean  a  majority  of  all  those  voting 
for  certain  classes  of  officers  or  representatives  or  magis- 
trates, such  as  members  of  the  State  legislature,  and  again  a 
majority  of  those  voting  on  the  specific  proposition  or 
amendment.  There  is  often  a  wide  difference  in  these  totals, 
since  in  the  American  experience  it  has  been  found  that 
greater  popular  interest  is  felt  and  expressed  in  the  success  or 
defeat  of  individual  candidates,  than  of  laws  and  measures. 

There  is  one  notable  exception  in  the  case  of  Rhode  Island, 
where  a  "  majority "  in  none  of  its  forms  prevails  since 

20  Article  xxv  of  the  Amendments. 
11  Article  xi,  sec.  3. 


154  THE  REFERENDUM  IN  AMERICA 

propositions  for  the  amendment  of  the  Constitution  must 
receive  the  approving  vote  "  of  three-fifths  of  the  electors 
of  the  State  present  and  voting  thereon  ",22 

Having  finished  this  rather  tedious  recital  as  to  the  actual 
provisions  on  the  point,  some  important  tendencies  may  be 
noted.  In  the  first  place,  we  have  been  making  it  easier  all 
the  while,  to  change  our  State  constitutions.  To  begin  with 
we  took  the  function  of  constitutional  law-making  out  of  the 
hands  of  the  legislatures,  and  gave  it  over  to  conventions 
t  specifically  assigned  to  the  task.  We  gradually  perceived 
that  as  the  States  grew  and  conditions  changed,  it  was  es- 
sential to  introduce  some  simpler  process  of  amendment  than 
by  calling  together  a  new  convention  every  time  any  change 
in  the  constitution,  however  slight,  might  be  adjudged  to  be 
needful.  Still  entertaining  that  distrust  of  the  legislature  as 
a  constitutional  law-giver,  which  had  been  characteristic  of 
Americans  from  the  time  they  severed  their  political  rela- 
tions with  England,  we  in  1818  in  Connecticut  brought  in 
the  people  themselves  as  a  brake  upon  the  legislature  in  the 
exercise  of  the  amending  power,  and  from  that  time  onward 
the  legislative  mode  of  amendment  with  respect  to  specific 
and  particular  amendments  rapidly  spread  throughout  the 
United  States.  Still  earlier  we  had  taken  the  people  into 
our  confidence  as  direct  participants  in  the  enactment  of 
constitutional  law,  inasmuch  as  conventions  in  some  States 
were  called  only  after  a  favorable  vote  in  a  plebiscite ;  whole 
constitutions  in  some  States  were  submitted  to  the  citizens 
at  large,  and  specific  amendments  passed  by  conventions 
were  referred  to  the  people,  as  they  were  now  also  to  be  re- 
ferred to  the  people  when  proposed  by  the  legislatures.  At 
first  there  were  other  checks  upon  the  legislature  in  the  ex- 
ercise of  the  constituent  power,  which  are  gradually  tending 
to  vanish  away.  It  was  usual  at  an  earlier  time  for  the  con- 
stitution to  require  that  a  proposition  for  amendment  should 
twice  pass  the  legislature  before  being  sent  to  the  referen- 
dum. Although  Maine  started  out  on  another  track  in 

22  Article  xiii. 


AMENDMENT  BY  THE  LEGISLATIVE  METHOD     15$ 

1819,  she  stood  alone  in  her  provision  that  passage  a  single 
time  would  suffice,  until  joined  by  Michigan  in  1850,  and 
Ohio  in  1851.  To-day  there  are  twenty-seven  States  which 
employ  this  simpler  process,  several,  indeed,  satisfying  them- 
selves if  the  proposal  for  amendment  shall  be  passed  by  a 
simple  majority  of  the  members  elected  to  the  legis- 
lature, rather  than  by  a  two-thirds  or  a  three-fifths  majority 
vote.  Furthermore,  while  it  was  not  unusual  some  years  ago 
for  the  constitutions  to  specify  that  an  amendment  should  be 
approved  by  a  larger  number  of  electors  than  a  majority  of 
those  voting  on  the  subject,  which  would  again  have  the 
effect  of  making  constitutional  change  more  difficult,  there 
has  been  a  tendency  in  later  years  toward  a  liberalization  of 
our  standards  in  reference  to  this  point  also.  There  is  a  ten- 
dency at  work  to  establish  the  rule  that  one  person  over  a 
half  of  those  voting  on  a  proposition,  may  determine  the 
popular  will.  A  majority  of  those  who  present  themselves 
to  vote  on  a  subject,  define  the  policy  of  the  State,  and  speak 
through  it  not  only  for  the  minority,  but  for  that  vast  num- 
ber of  men  who  are  so  negligent  as  to  political  duty,  and  who 
feel  so  little  personal  interest  in  public  questions,  that  they 
remain  away  from  the  pollings  altogether,  and  say  neither 
yea  nor  nay.  Democracy,  doubtless,  is  powerless  to  suggest 
any  other  reasonable  plan. 

It  must  be  noted,  too,  that  our  conceptions  of  constitu- 
tional law  have  all  the  while  been  enlarging.  Distrust  for 
representatives,  particularly  those  chosen  to  our  legislatures, 
has  increased.  The  conventions  have  absorbed  important 
powers  in  the  matter  of  constitution  making,  inasmuch  as 
subjects  are  handled  thus  now,  which  earlier  would  not  have 
had  a  place  in  the  constitutions  at  all.  Statute  law  disguised 
as  constitutional  law,  is  put  in  these  comprehensive  State 
codes,  to  be  kept  safe  away  from  the  discredited  legislature 
Nevertheless  we  have  been  manifesting  no  distrust  of  our 
legislatures,  acting  in  their  capacity  as  makers  of  the  fun- 
damental law,  but  have  been  strengthening  their  hand  in 
this  particular.  Faith  has  been  put  in  the  referendum  as  a 


I56  THE  REFERENDUM  IN  AMERICA 

power  to  deliver  us  from  evils  arising  from  the  legislature 
through  this  source.  To-day  it  is  more  essential  than  it  ever 
was  before  that  the  constitution  should  be  easily  and  quickly 
changed,  since  a  constitution  which  is  full  of  details  con- 
cerning nearly  every  small  topic  of  legislation,  must  not  be 
bound  about  by  hard  and  fast  barriers,  upon  which  impress 
can  be  made  only  with  great  difficulty.  It  is  almost  impos- 
sible, except  when  public  opinion  is  wrought  up  in  some  ex- 
traordinary manner  to  change  the  Constitution  of  the  Fed- 
eral Union.  Most  of  us  will  agree  that  it  is  a  very  fortunate 
safeguard,  a  proud  feature  of  our  political  system  which  we 
should  hold  fast  to.  Yet  in  our  States  political  conditions 
have  got  to  be  so  abnormal  that  we  are  probably  compelled 
to  approve  of  a  different  tendency.  Certainly  if  we  look  with 
favor  upon  the  movement  to  restrict  the  power  of  the  legis- 
latures, and  enlarge  the  authority  of  the  constitutional  con- 
ventions, in  order  to  stop  the  diabolism  that  has  lately  come 
to  flourish  at  the  State  capitals,  we  must  have  an  easy  means 
of  changing  our  codes  of  law  again,  if  they  need  change, 
which  they  must  from  time  to  time,  as  human  conditions  un- 
dergo amendment.  We  have  at  hand  no  better  agent  than  the 
legislature;  there  ought  to  be  none  higher  or  better  among 
those  peoples  who  are  bred  in  the  traditions  of  the  British 
Constitution,  but  we  seem  powerless  to  improve  the  char- 
acter of  our  representatives,  and  therefore  we  authorize 
them  to  propose  changes  in  the  fundamental  law,  upon  the 
one  condition  that  they  will  submit  them  to  the  people. 

That  the  people  are  the  legislators  here  to  a  degree  that 
they  are  not  when  they  vote  upon  constitutions  submitted 
in  solido  by  conventions,  there  is  abundant  evidence  to  show. 
It  is  of  diminishing  importance  to  us  whether  the  amend- 
ment is  passed  by  the  legislature  one  time  or  twice,  or 
whether  two-thirds  of  the  members  or  only  a  majority  of  the 
same  approve  the  measure.  We  look  to  the  people  to  guard 
the  constitution  against  unnecessary  and  improper  change, 
and  if  they  permit  such  a  change,  even  though  their  course 
be  against  the  better  judgment  of  certain  elements  in  the 


AMENDMENT  BY  THE  LEGISLATIVE  METHOD    15? 

electorate,  we  are  disposed  to  accept  the  result  philosoph- 
ically, with  no  thought  of  committing  this  important  dutv 
to  any  other  of  the  State's  agents.  The  people  in  the  case 
of  constitutional  amendments,  are  in  very  truth  their  own 
law  makers,  and  they  have  made  a  record  as  legislators 
which  we  must  not  judge  with  too  much  severity,  when  it 
is  remembered  how  necessary  it  is  to  have  some  method  of 
changing  the  State  constitutions,  other  than  by  convention, 
and  what  singular  untrustworthiness  has  lately  been  devel- 
oped in  our  representative  legislatures. 

Nearly  all  the  constitutions  recognize  the  importance  of 
the  popular  vote,  when  they  require  that  if  more  amendments 
than  one  are  submitted  at  the  same  election,  they  shall  be 
numbered  or  otherwise  designated,  so  that  they  may  be 
readily  distinguished  by  the  voters,  and  may  be  accepted 
or  rejected  separately.  Yet,  in  some  States,  there  is  the  lin- 
gering suggestion  of  a  tendency  to  hold  the  legislature 
within  bounds,  in  the  reference  of  amendments  to  popular 
vote.  For  instance,  in  Vermont  there  are  only  some  certain 
sessions  of  the  legislature, — once  every  ten  years,  in  1880, 
1890,  etc., — when  amendments  to  the  Constitution  may  be 
proposed  to  the  people,23  and  in  Tennessee  such  proposals 
may  be  made  by  the  legislature  not  oftener  than  once  in  six 
years.24  In  some  States  again,  the  legislature  is  restricted 
in  the  number  of  amendments  which  it  may  submit  at  any 
one  time;  in  Arkansas  three,  in  Kansas  three,  in  Mon- 
tana three  and  in  Kentucky  two.  In  other  Stales  a  different 
method  is  adopted,  as  for  instance,  in  Colorado  and  Illinois, 
where  amendments  to  more  than  one  article  may  not  be  pro- 
posed at  the  same  legislative  session,25  and  Indiana,  where 
the  Assembly,  having  proposed  one  or  more  amendments, 
must  wait  until  these  are  definitely  disposed  of  by  the  people 

23  Article  xxv,  sec.  i,  of  the  Amendments  to  the  Constitution. 

24  Article  xi,   sec.   3,   of  the  Constitution. 

25  The  Illinois  legislature,  lately  made  an  effort  to  extend  its  powers 
in  this  respect  by  a  constitutional   amendment,   but  the  latter  was  re- 
jected by  the  people  to  whom  it  was  submitted  in   1896. 


I58  THE  REFERENDUM  IN  AMERICA 

before  it  can  propose  any  more.  In  a  few  States,  too,  there 
are  provisions  which  forbid  the  legislature  from  submitting 
the  same  amendment  or  amendments  again  when  they  have 
been  once  rejected  by  the  people,  except  after  the  lapse  of  a 
specified  period,  as  for  instance,  five  years.  These  pro- 
visions occur,  however,  in  but  a  small  minority  of  the 
States.  In  the  larger  number  the  legislature  is  given  a  free 
hand  to  do  what  it  will  in  this  field  at  the  time  that  it  will.26 
It  has  now  come  about,  therefore,  that  a  very  large 
amount  of  law  reaches  us  in  this  manner.  The  constitutions 
being  themselves  stuffed  out  with  extraneous  matter  which 
strictly  viewed  is  not  constitutional  law  at  all,  the  amend- 
ments, as  might  be  expected,  partake  of  the  same  character. 
As  we  have  noted  already,  one  reason  why  this  power  must 
be  at  the  legislature's  hand,  is  because  of  the  radical  change 
which  has  come  over  our  notions  of  constitutional  law,  for 
since  the  constitutions  are  filled  with  details,  meant  to  serve 
temporary  ends,  they  must  be  susceptible  to  some  remodeling, 
when  the  conditions  which  called  them  forth  have  passed 
away  again,  and  they  stand  out  as  obstacles  in  the  pathway  of 
a  natural  political  development.  This  is  one  explanation  of 
the  tendency  to  much  and  frequent  amendment  of  constitu- 
tions through  the  legislative  mode.  Another  is  the  timidity 
and  weakness  of  the  State  legislatures,  which  often  knowing 
not  what  to  do  when  public  opinion,  or  that  which  they 
take  to  be  such,  demands  the  passage  of  this  or  the  other  law, 
evade  the  whole  issue  by  incorporating  the  subject  in  an 
amendment  to  the  constitution,  and  submitting  it  to  popular 
vote.  There  are  objections  which  tower  up  and  look  rather 

88  When  an  amendment  is  submitted  to  popular  vote,  the  ballots  are 
usually,  "  For  the  Constitutional  Amendment "  or  "  Against  the  Con- 
stitutional Amendment ".  The  proposition  is  as  a  rule  summarized  and 
briefly  described  by  title,  and  when  there  are  several  amendments  to 
be  voted  on  at  the  same  time,  they  are  often  separately  numbered,  as  a 
farther  means  to  distinction.  In  this  case,  by  the  Australian  ballot 
system,  the  vote  is  by  yes  or  no.  the  elector's  preference  being  indicated 
by  a  cross  mark  in  a  space  reserved  for  that  purpose.  In  other  cases 
the  full  text  of  the  proposed  amendments  is  printed  on  the  ballots. 
Various  methods  are  in  use  in  the  different  States. 


AMENDMENT  BY  THE  LEGISLATIVE  METHOD    159 

insurmountable,  in  thus  submitting  an  ordinary  statute  law, 
as  I  shall  show  in  a  subsequent  chapter  of  this  work,  but  the 
whole  matter  is  taken  out  of  the  reach  of  the  courts,  when 
it  is  embodied  in  a  constitutional  amendment.  "  If  the  peo- 
ple who  are  the  source  of  power  under  our  system  of  govern- 
ment ",  the  members  of  the  legislature  argue,  "  are  in  favor 
of  this  measure  for  which  there  seems  to  be  a  popular  de- 
mand, then  let  them  vote  for  it  at  the  polls.  They  can  de- 
cide for  themselves  whether  they  want  it  or  not.  If  they 
try  to  hold  us  responsible  at  the  next  election,  we  will  tell 
them  that  we  did  all  that  ought  to  be  asked  of  us.  We  passed 
a  law  submitting  the  question  to  them,  to  do  with  it  as  they 
liked."  Thus  laws  to  prohibit  the  manufacture  and  sale  of 
intoxicating  liquors  have  been  submitted  in  the  States  again 
and  again,  by  legislatures  whose  members  have  had  no  feel- 
ing of  responsibility  regarding  their  action.  In  a  period  of 
ten  years,  or  from  1880  to  1890,  some  twenty  States  appear 
to  have  had  referenda  on  this  subject.  This  was  an  era  in 
which  the  "  temperance  sentiment "  was  thought  to  be  as- 
suming formidable  political  proportions,  and  the  leaders  of 
the  parties  and  the  various  local  "  bosses  "  saw  in  the  ref- 
erendum an  easy  and  respectable  method  of  holding  the  sup- 
port of  elements  which  were  threatening  to  "  break  away  " 
from  the  party.  The  movement  reached  its  height  in  1889, 
when  the  people  of  no  less  than  eight  States  voted  on  the 
question,  nearly  all  adversely.27 

Of  this  general  character,  too,  are  the  propositions  for 
granting  suffrage  to  women,  for  although  qualifications  for 
those  who  are  to  exercise  the  franchise,  are  now  quite  com- 
monly a  subject  of  constitutional  treatment,  and  perhaps 
very  rightly  so,  there  is  here  again  no  intent  behind  the  sub- 
mission on  the  part  of  the  submitting  power,  except  to  shift 
the  responsibility  from  its  own  shoulders.  In  recent  years 
such  amendments  have  been  repeatedly  referred  to  the  peo- 
ple, and  full  suffrage  has  thus  been  conferred  upon  women 

27  Cf.  Oberholtzer,  The  Referendum  in  America,  Philada.,  1893,  PP« 
46-47. 


160  THE  REFERENDUM  IN  AMERICA 

in  two  States — Colorado  in  1893  and  Idaho  in  i896,28  while 
school  or  municipal  suffrage  has  been  acquired  by  women  in 
this  way  in  several  Commonwealths.  The  people  of  South 
Dakota  in  1897,  New  Jersey  in  1897,  Kansas  in  1894,  Cal- 
ifornia in  1896,  Washington  in  1898,  and  several  other 
States,  have  voted  upon  this  question.  In  submitting  such  a 
proposition,  the  legislature  considers  that  it  neither  gives  its 
favor  nor  withholds  it.  It  assigns  to  itself  indeed  a  place 
inferior  to  that  of  a  legislative  committee,  which  when  it 
reports  a  subject,  is  usually  able  to  add  its  endorsement  to 
it,  and  render  some  explanation  of  its  action.  This  there 
is  no  pretense  of  doing  in  the  case  of  these  prohibitory  and 
woman  suffrage  amendments.  The  subjects  are  not  de- 
bated, and  the  votes  of  the  members  are  recorded  perfunc- 
torily without  any  one  asking  himself  whether  he  desires 
that  this  bill  shall  become  a  law  or  not,  or  whether  in  his 
judgment  it  is  advisable  or  expedient  that  it  should  become 
a  law. 

Of  a  similar  character  is  the  famous  lottery  amendment  in 
Louisiana.  This  bill  was  passed  by  the  legislature,  and  the 
question  was  submitted  to  the  people  of  granting  a  charter 
to  the  so-called  "  Louisiana  Lottery ",  which  was  to  pay 
into  the  public  treasury  millions  of  dollars,  in  aid  of  the 
levees,  schools,  charities  and  the  pension,  drainage,  and 
other  specific  and  general  funds  of  the  State.  The  legis- 
lature feared  to  renew  the  public  authorization  of  this  im- 
mense enterprise,  which,  in^  fact,  the  Constitution  prohibited 
beyond  the  year  1895,  and  the  friends  of  this  great  instru- 
ment of  debauchery  aimed  to  secure  for  it  another  term  of 
life,  by  this  specious  amendment  which  was  in  the  nature 
of  a  bribe  to  the  taxpayers.  The  people  in  1892,  when  the 
matter  was  referred  to  them,  promptly  and  to  their  great 
credit,  rejected  the  insidious  proposal.29 

Nevada,  in  1889,  held  a  referendum  on  a  constitutional 

*•  Wyoming    and    Utah    have    had    woman    suffrage    ever    since    they 
entered  the  Union,  the  former  in  1880  and  the  latter  in   1895. 
89  Cf.  McEherson's  Handbook  of  Politics  for  1890,  pp.  266-67. 


AMENDMENT  BY  THE  LEGISLATIVE  METHOD    161 

amendment,  meant  to  put  it  in  the  power  of  the  State  legis- 
lature to  establish  and  incorporate  a  lottery,  the  proposal 
having  been  defeated  by  the  people,  while  New  Jersey  in 
1897,  when  it  was  a  question  of  prohibiting  the  legislature 
from  authorizing  lottery  enterprises,  "  poolselling ",  book- 
making  or  gambling  of  any  kind  within  the  State,  also  voted 
on  the  side  of  virtue  and  good  order,  though  the  fate  of  the 
amendment  for  a  time  seemed  in  doubt,  and  the  majority 
against  the  iniquity  was  so  small  as  to  argue  little  in  favor 
of  the  people's  ability  rightly  to  decide  a  plain  moral  ques- 
tion which  is  thus  submitted  to  them  en  masse.  The  result 
of  the  ballot  was  70,443  for,  and  69,642  against  the  amend- 
ment, the  day  having  been  saved,  as  it  were,  by  accident. 

Somewhat  similar  in  character  are  amendments  in  certain 
Southern  States  to  grant  pensions  to  veterans  of  the  Con- 
federate Army,  the  legislatures  desiring  by  the  submission 
to  free  themselves  from  unpleasant  consequences.  Such  an 
amendment  was  submitted  to  the  people  of  Georgia  in  1894, 
Louisiana  in  1896,  and  Texas  in  1898. 

Not  only  in  the  matter  of  prohibiting  the  manufacture  and 
sale  of  alcoholic  beverages,  but  also  in  granting  licenses  for 
trafficking  in  liquors,  as  in  Nebraska  in  1890,  and  for  in- 
troducing a  socialistic  system  of  State  agencies  or  liquor 
dispensaries,  as  in  South  Dakota  in  1898,  the  legislature 
escapes  its  just  responsibility  by  calling  for  a  popular  vote. 
Such  an  appeal  to  the  acclaim  of  the  crowd  as  an  amend- 
ment proposing  to  prohibit  trusts,  monopolies  and  com- 
binations in  trade  was  made  in  South  Dakota  in  1896,  and, 
as  if  there  could  be  two  sides  to  such  a  question  as  the  leas- 
ing out  of  State  convicts  to  private  companies,  the  people 
of  Louisiana  were  asked  to  express  their  views  upon  a  con- 
stitutional amendment  in  reference  to  this  point.  In  Minne- 
sota in  1896,  there  was  a  referendum  on  an  amendment  pro- 
posing a  tax  on  sleeping  car  and  parlor  car  companies,  and 
in  Missouri  in  the  same  year,  the  people  were  called  upon  to 
decide  whether  the  minimum  age  of  attendance  among  chil- 
dren at  the  public  schools  could  be  properly  reduced  from 


162 


THE  REFERENDUM  IN  AMERICA 


six  to  five  years.  The  Minnesota  legislature  in  1888  sub- 
mitted an  amendment  to  prohibit  under  penalty,  any  move- 
ment "  to  monopolize  the  markets  for  food  products,  or  to 
interfere  with  or  restrict  the  freedom  of  such  markets  ". 

An  unusual  instance  of  irresponsibility  on  the  part  of 
legislatures  in  submitting  questions  to  popular  vote,  is  met 
with  in  California  in  1893,  when  it  is  related  that  late  one 
night  a  member  in  a  moment  of  pique  at  something  which 
had  been  said  in  a  Sacramento  newspaper  regarding  the 
body  to  which  he  belonged,  got  through  an  amendment  to 
move  the  State  capital  to  San  Jose,  a  rival  city  two  hundred 
miles  distant.  The  legislature  took  this  means,  it  is  said,  of 
avenging  itself  on  some  ill-humored  critics  who  were  re- 
joicing in  print  that  it  was  nearly  time  for  the  body  to  ad- 
journ, and  for  the  members  to  return  to  their  homes.30 

A  proposal  to  change  a  well-founded  rule  of  our  consti- 
tutional system,  wrung  at  great  cost  from  their  kings  and 
governors  by  our  Anglo-Saxon  ancestors,  and  now  holding 
a  place  in  nearly  all  our  Bills  of  Rights,  is  also  occasionally 
made  a  subject  for  popular  vote.  This  is,  namely,  a  proposi- 
tion to  permit  less  than  the  whole  number  of  jurors,  as  for 
instance  five-sixths,  to  render  a  verdict.  Such  an  amend- 
ment, full  of  historical  interest  for  the  student  of  legal  in- 
stitutions, was  referred  to  the  people  of  Nebraska  in  1896, 
and  although  defeated  there,  has  actually  secured  a  foothold 
in  some  of  the  Western  Commonwealths.  Minnesota 
adopted  such  an  amendment  in  1890.  In  1897  the  people 
of  Maryland  voted  on  and  rejected  an  amendment,  plainly 
in  the  interest  of  good  government,  to  make  "  appointments 
in  the  civil  service  of  the  State  in  the  municipalities  and 
counties  of  the  State,  according  to  merit  and  fitness  to  be 
ascertained  as  far  as  practicable  by  examination  ".  Under 
no  possible  circumstance  should  the  legislature  have  been  in 
doubt  regarding  this  subject,  and  there  was  nothing  to  pre- 

80  For  this  amendment  see  Statutes  of  California  for  1893,  p.  657.  It 
var.  declared  to  be  void  by  the  Supreme  Court  of  the  State,  Livermore 
v.  \Yuite,  102  Cal.,  p.  113 


AMENDMENT  BY  THE  LEGISLATIVE  METHOD    163 

vent  its  definitive  action  by  the  passage  of  a  statute,  which 
would  have  taken  immediate  effect  without  a  referendum. 
Concerning  the  actual  quantity  of  this  kind  of  legislation 
referred  to  the  people  each  year,  some  authoritative  statis- 
tics will  be  of  interest,  and  these  are  fortunately  at  hand 
in  the  annual  compilations  of  the  New  York  State  Library. 
In  the  volume  for  1895,  record  is  found  of  thirty-seven 
amendments  which  were  submitted  to  the  people  in  fifteen 
different  States.  Nearly  all  of  these  were  voted  on  at  elec- 
tions held  in  the  year  1894,  and  fifteen  out  of  the  thirty- 
seven  were  rejected  by  the  people,  while  twenty-two  were 
approved.  Classifying  these  amendments  in  a  general  way 
by  subjects,  it  appears  that  thirteen  related  to  taxation  and 
debt,  either  in  the  States  or  in  local  communities,  eight  to 
local  and  municipal  government,  five  to  suffrage  qualifica- 
tions, four  to  the  Governor  and  other  State  officers  excluding 
the  members  of  the  legislature,  six  to  the  legislature,  three 
to  schools  and  education,  three  to  the  judiciary,  two  to 
woman  suffrage,  while  one  proposed  the  removal  of  a  State 
capital,  one  the  exclusion  of  aliens  from  holding  real  estate, 
one  a  granting  of  aid  to  soldiers'  homes  and  one  the  pay- 
ment of  pensions  to  Confederate  veterans.31  In  1896  the 
same  authority  gives  us  a  list  of  sixty-two  amendments 
that  were  submitted  to  the  people  in  that  year,  of  which 
twenty-four  were  approved  and  thirty-eight  rejected.  Of 
these  again,  fourteen  related  to  suffrage  and  elections,  twelve 
to  the  judiciary  and  the  courts,  eleven  to  tax  and  debt  sub- 
jects, eight  to  local  and  municipal  government,  eight  to  edu- 
cation, four  to  legislative  procedure,  four  to  the  Governor  and 
the  executive  department  of  the  government,  two  to  cor- 
porations, one  to  prohibition,  one  to  Confederate  pensions, 
two  to  penal  and  correctional  subjects,  one  to  the  removal 
of  a  State  capital,  one  to  the  lease  of  State  forest  reserve 
lands  and  one  proposing  compensation  for  damage  to  pri- 
vate property.32  In  1897,  however,  according  to  this  record, 

£1  New  York  State  Library's  Legislative  Bulletin  for  1895. 
82 1 bid.,  for  1896. 


1 64  THE  REFERENDUM  IN  AMERICA 

only  eleven  .amendments  were  submitted  to  the  people,  four 
of  which  were  approved  and  seven  rejected,33  while  in  1898 
there  was  again  a  large  number  of  such  propositions  referred 
to  popular  vote,  including  seven  in  California,  four  in  Minne- 
sota, and  three  in  South  Dakota.  For  an  earlier  period,  Mc- 
Pherson's  biennial  report  in  1888  gives  us  forty  amend- 
ments for  the  two  preceding  years,  covered  by  the  compila- 
tion, of  which  twenty-seven  were  rejected  and  thirteen  were 
approved.34  In  1890  there  are  again  forty  amendments  re- 
ported, of  which  eighteen  were  adopted  and  twenty-two  re- 
jected,35 while  in  1892,  when  this  record  unfortunately 
closes,  there  are  thirty-six  amendments  in  the  compiler's  list, 
of  which  twenty-three  were  adopted  and  thirteen  rejected.38 
One  fact  claims  our  attention  on  the  threshold  oi  a  further 
treatment  of  this  subject,  and  that  is  with  respect  to  the  time 
of  submission.  The  different  States  are  tending  toward  uni- 
formity on  this  point,  selecting  the  even-numbered  years,  or 
the  years  when  the  "  general  elections  "  occur,  i.  e.,  the  elec- 
tions for  Governors,  general  State  officers  and  Congressmen. 
In  all  but  three  of  the  States,  Congressmen  are  now  chosen 
on  the  same  day,  namely,  the  first  Tuesday  after  the  first 
Monday  in  the  November  of  every  second  year.  There  are 
local  elections  at  other  times,  and  it  is  still  not  unusual  for 
amendments  to  be  submitted  to  the  people  at  special  elec- 
tions, at  which  no  other  issues  are  at  hand  to  divert  the  in- 
terest or  attention  of  the  electors.  Thus  the  three  amend- 
ments referred  to  popular  vote  in  September,  1897,  in  New 
Jersey,  were  submitted  at  a  special  election,  as  were  two 
amendments  in  Pennsylvania  in  June,  1889,  including  one  to 
prohibit  the  liquor  traffic,  three  in  Texas  in  August,  1897, 
fourteen  in  Nevada  in  February,  1889,  to  name  but  a  few  of 
many  instances  that  might  be  given.  The  constitutions  often 
contain  a  definite  command  that  amendments  shall  only  be 
submitted  at  general  elections,  and  when  this  is  not  the  case, 
the  legislature  acting  on  its  own  authority,  usually  selects 

33  Bulletin  for    1897.        •*  McPherson's  Handbook  of  Politics  for  1888. 
»Ibid.f  for  1890.         "Ibid.,  for  1892. 


AMENDMENT  BY  THE  LEGISLATIVE  METHOD    165 

this  time  as  most  suitable  for  taking  the  popular  vote.  On 
the  other  hand,  there  are  constitutions  which  positively  re- 
quire that  all  amendments  shall  be  submitted  at  special  elec- 
tions, as  in  New  Jersey,  by  the  Constitution  of  1844.  In  that 
State  when  an  amendment  is  proposed,  it  must  be  approved 
by  the  people  "  at  a  special  election  to  be  held  for  that  pur- 
pose only  ".3T 

There  is  a  general  realization  of  the  fact  that  it  is  much  \ 
more  expensive  to  the  State  specially  to  open  and  equip  the 
polls  for  an  amendment  election.  Separate  ballots  must  be 
printed,  and  the  entire  machinery  necessary  for  the  conduct 
of  elections  must  be  set  up  just  as  if  a  Governor,  Congress- 
men, members  of  legislature,  and  an  entire  list  of  officers 
were  to  be  chosen.  It  is  now  considered  better  to  vote  upon 
all  these  subjects  on  the  same  day,  to  print  the  amendments 
on  one  end  of  the  large  ballot  sheets,  since  the  Australian  sys- 
tem has  come  into  use,  and  to  ask  for  the  voter's  yea  and  nay, 
on  propositions  at  the  same  time  he  is  choosing  from  among 
persons.  Again,  it  has  been  shown  clearly  and  conclusively 
by  experience,  that  while  it  is  difficult  enough  to  induce 
voters  to  express  themselves  with  respect  to  laws  and  prop- 
ositions at  general  elections,  it  is  yet  harder  to  get  them  to 
take  any  interest  in  such  a  subject  at  special  elections.  There 
is  no  topic  in  our  practice,  so  far  as  it  has  gone,  which  calls 
forth  more  popular  interest,  perhaps,  than  the  prohibition  of 
the  manufacture  and  sale  of  liquor.  A  large  industry  is  here 
attacked  on  the  one  side,  and  a  personal  right  to  gratify 
strong  tastes  and  desires  is  put  in  jeopardy,  while  on  the 
other  side  is  the  ever  active  group  of  teetotalers  and  prohi- 
bitionists. These  factors  inherent  to  a  democracy  are  to  be 
reckoned  with  in  any  case,  quite  independent  of  whatever 
sentiment  there  may  be  which  is  opposed  to,  or  in  favor  of  a 
political  philosophy  justifying  drastic  State  regulation  of 
such  a  subject,  and  which  would  be  expected  to  have  some 
force  with  those  who  are  entrusted  with  the  duty  of  making 
the  State's  laws. 

37  Art.  ix. 


1 66  THE  REFERENDUM  IN  AMERICA 

In  1889  when  two  amendments  were  submitted  to  the 
people  of  Pennsylvania  at  a  special  election,  one  on  prohibi- 
tion, the  other  on  a  suffrage  question,  the  total  vote  cast 
was  781,261  and  603,694,  respectively.  Therefore,  when 
there  was  nothing  else  to  be  voted  on  but  these  two  propo- 
sitions, upwards  of  175,000  persons  were  interested  in  the 
one  question  who  would  not  put  themselves  to  the  trouble 
to  vote  upon  the  other.  The  total  vote  of  the  State  at  the 
Presidential  election  of  1888,  was  about  1,000,000,  and  for 
Governor  in  1890,  over  900,000.  In  Connecticut  in  1889,  the 
total  vote  on  a  prohibition  amendment  which  was  submitted 
singly  and  separately  unaccompanied  by  any  other  proposi- 
tion, was  72,353,  as  compared  with  a  vote  in  the  State  for 
President  in  1888  of  153,978.  In  New  Hampshire  in  1889, 
and  Texas  in  1887,  when  prohibition  amendments  were  sub- 
mitted, together  with  several  other  propositions,  those  upon 
the  prohibition  subject  received  the  votes  of  many  thousands 
of  persons  who  seemed  to  have  no  interest  in  the  other  mat- 
ters referred  to  them.  In  the  latter  State,  for  instance,  the 
prohibition  amendment  polled  349,897,  nearly  the  full  vote, 
while  no  one  of  the  other  five  amendments  submitted  at  the 
same  election  secured  more  than  235,000  votes.38  In  New 
Jersey  in  1890,  when  two  amendments  were  submitted  to  the 
people  at  a  special  election,  the  vote  was  62,378  and  62,367 
respectively,  against  303,741  votes  for  President  in  1888, 
and  in  the  referendum  on  the  three  amendments  in  1897, 
the  vote  was  140,018,  140.085  and  140,191  respectively,  as 
compared  with  a  total  vote  of  371,014  for  President  in  1896. 

On  the  other  hand,  it  is  argued  by  some  who  seem  how- 
ever to  have  the  weight  of  our  tendencies  against  them,  that 
at  special  elections  there  is  a  much  better  opportunity  to  se- 
cure an  unbiased  expression  of  public  opinion,  since  parties 
then  are  not  at  a  white  heat,  and  men  are  not  absorbed  in 
questions  having  to  do  with  the  success  of  oarticular  candi- 
dates. Indeed  the  prohibitionists  were  earlier  clear  in  their 

ns  These  figures  are  from  McPherson's  Handbook,  and  the  World  Al- 
manacs. 


AMENDMENT  BY  THE  LEGISLATIVE  METHOD    167 

demands  that  their  amendments  should  be  submitted  at 
special  elections,  though,  other  things  being  equal,  as  a 
means  of  securing  the  largest  possible  number  of  votes  upon 
a  proposition,  there  is  little  in  our  recent  experience  to  rec- 
ommend such  a  policy. 

At  some  recent  general  elections,  when  amendments  have 
been  submitted  to  the  people,  instructive  comparisons  may 
be  made  to  show  how  many  voters  there  are  who,  through 
ignorance,  or  indisposition  to  perform  their  duties  as  citi- 
zens of  a  democracy,  will  omit  expressing  themselves  on 
either  side  in  a  referendum.  Of  six  amendments  adopted 
in  Minnesota  in  1896 39  when  the  total  vote  varied  from 
158,027,  on  an  amendment  which  related  to  taking  private 
property  for  public  use,  to  206,616  on  an  amendment  to  tax 
sleeping  car,  telegraph,  express  and  other  companies,  there 
was  a  vote  for  President  at  the  same  election  of  341,644. 
An  amendment  in  Minnesota,  in  1894,  levying  a  tax  on  in- 
heritances, secured  a  total  vote  of  149,574,  when  the  whole 
vote  for  Governor  at  the  same  election  in  the  same  State, 
was  296,337.  Two  amendments  which  were  submitted  to 
popular  vote  in  Kansas  in  1890,  polled  192,504  and  188,237 
votes  respectively,  as  against  294,584  for  Governor  at  the 
same  election.  Even  in  Massachusetts,  our  leading  State  of 
New  England,  where  it  is  often  thought  that  men  look  upon 
citizenship  more  seriously,  two  amendments  in  1890  received 
only  141,863  and  127,130  votes  respectively,  while  285,515 
votes  were  cast  for  Governor,  and  in  1891  when  two  amend- 
ments were  again  referred  to  the  people,  182,278  and  198,485 
votes  were  recorded  on  the  propositions  as  compared  with  a 
total  vote  of  320,237  for  Governor.  In  Colorado,  in  1892, 
two  amendments  in  reference  to  taxation  were  submitted  to 
popular  vote.  They  drew  forth  26,054  and  24,173  votes  re- 
spectively, with  a  total  vote  of  93,843  in  the  State  for  Presi- 
dent at  the  same  election.  Three  amendments  in  1894  in 
Colorado  received  about  75,000  votes  each,  out  of  a  total  of 
1/6,966  cast  for  State  officers.  At  the  general  election  in 

3U  General  Laws  of  Minnesota  of  1897,  PP-  iii  to  ix. 


1 68  THE  REFERENDUM  IN  AMERICA 

California  in  1898,  seven  amendments  polled  the  following 
numbers  of  votes:  144,615,  149,849,  I44»927»  I37,971,  146- 
008,  142,438,  and  144,464,  respectively.  A  proposition  to 
call  a  constitutional  convention  polled  only  107,563  votes. 
The  vote  for  Governor  at  the  same  election  was  287,064. 
In  South  Dakota  in  1898,  three  amendments  received  40,299, 
42,681  and  42,727  votes  respectively,  against  74,276  cast  for 
Governor. 

Three  amendment  elections  recently  held  in  Texas  are  in- 
structive. At  a  special  election,  August  3,  1897,  three 
amendments,  one  permitting  the  formation  of  irrigation  dis- 
tricts in  West  Texas,  the  second  authorizing  certain  counties 
to  give  aid  in  the  construction  of  railways,  the  third  validat- 
ing bonds  held  by  the  State  as  an  investment  for  the  per- 
manent school  fund,  attracted  only  about  75,000  electors  to 
the  polls.  Another  special  election  on  an  amendment  was 
held  on  November  i,  1898.  The  legislature  had  intended 
to  make  this  submission  at  the  regular  general  election,  but 
by  an  oversight,  the  resolution  declared  that  the  election 
should  be  held  on  the  first  Tuesday  in  November,  instead  of 
the  first  Tuesday  after  the  first  Monday  in  the  month.  This 
was  an  amendment  to  authorize  the  payment  of  pensions  to 
Confederate  soldiers,  and  the  total  vote  cast  was  about  no,- 
ooo.  An  amendment  to  increase  the  salaries  of  members  of 
the  State  legislature,  submitted  a  week  later  at  the  general 
election,  received  a  total  vote  of  291, 022. 40  The  vote  for 
Governor  on  the  same  day  was  409, 5 54.41 

We  are  thus  led  to  the  odd  conclusion  that  while,  as  is 
generally  understood,  there  is  a  considerable  body  of  men 
in  the  electorate  not  valuing  the  franchise  sufficiently  to  ex- 
ercise it  on  any  occasion,  even  in  the  elections  for  President 
of  the  United  States,  a  contest  in  which  the  most  interest  is 
always  aroused,  there  is  but  a  fraction  equal  to  about  a  half 
of  all  those  who  know  their  own  minds  respecting  candi- 
dates who  seem  to  care  anything  about  measures.  When  the 

40  There  were  only  35.901  votes  for  this  amendment  and  255,121  votes 
against  it.  41  Biennial  Report  of  the  Secretary  of  State  of  Texas,  1898. 


AMENDMENT  BY  THE  LEGISLATIVE  METHOD    169 

elections  are  held  on  special  dates,  that  is,  separate  from  the 
elections  of  men  who  are  to  represent  the  people  in  legis- 
latures and  in  executive  positions,  it  is  impossible  to  get  out 
even  half  the  vote,  unless  it  be  on  a  proposition  to  deprive  a 
citizen  of  his  beer  and  gin.  Even  a  proposal  to  enfranchise 
an  entire  new  half  of  the  race,  and  to  double  the  electorate, 
or  to  ally  the  State  openly  with  lottery  men  and  gamblers, 
will  awaken  from  their  lethargy  a  relatively  small  number 
of  those  who  come  out  from  their  homes  and  places  of  work 
and  business,  to  help  a  Republican  or  Democratic  candidate 
into  the  "  White  House  ". 

In  general  elections  when  the  electors  are  at  the  polls  any- 
how, and  are  voting  for  President,  or  Governor,  or  Con- 
gressmen, they  might,  it  would  seem,  without  too  much 
trouble  to  themselves,  vote  at  the  same  time  for  or  against  a 
proposition  that  may  perhaps  be  referred  to  them.  Here, 
too,  there  is  so  much  unconcern  as  to  the  result,  that  even 
when  the  amendment,  or  other  project,  is  printed  on  the 
same  ballot  with  the  names  of  the  officers  to  be  voted  for, 
only  about  five  persons  out  of  every  ten  will  indicate  what 
their  wishes  are  on  the  point.  When  several  proposals  are 
submitted,  if  there  is  any  way  left  open  to  the  voter  by  which 
he  in  his  illiteracy  and  carelessness  can  shirk  his  duty,  he 
will  do  so,  and  many  thousands  of  men  who  say  yea  or  nay 
to  one  or  two  of  the  amendments,  will  often  ignore  the  others 
altogether. 

It  is  a  strange  result  which  has  often  been  remarked  upon, 
not  only  with  us,  but  in  Switzerland  also,  that  when  several 
propositions  are  voted  on  at  the  same  time,  they  will  all  be 
treated  alike,  that  is,  approved  in  bulk,  or  rejected  in  the 
same  way.  The  experience  in  Minnesota  in  1898,  when  four 
amendments  were  submitted  to  the  people,  is  more  or  less 
that  of  the  entire  country  when  it  appeared,  to  quote  the 
rather  picturesque  language  of  a  Western  newspaper,  "  that 
most  of  the  voters  either  let  the  whole  batch  slide,  or  voted 
for  all  four  ",42  We  have  the  case,  too,  of  Texas  in  August, 

41  All  four  were  adopted. 


i  7o 


THE  REFERENDUM  IN  AMERICA 


1887,  to  which  allusion  was  earlier  made,  when  six  separate 
amendments  were  referred  to  the  people,  one  among  them 
being  a  proposition  to  prohibit  the  manufacture,  sale  or 
trade  in  intoxicating  liquors.  All  together  were  carried 
down  with  the  prohibitory  law,  against  which  there  was 
very  large  majority.  Perhaps  the  other  five,  or  foui 
of  them  at  least,  would  have  been  quite  to  the  people's  min< 
under  other  circumstances.  In  Pennsylvania  in  1889,  when 
two  amendments  were  submitted,  one  to  prohibit  the  liquor 
traffic  and  the  other  to  make  some  harmless  and  apparent!; 
beneficial  change  in  the  conditions  regulating  the  exercise 
of  the  suffrage,  both  were  voted  down  by  very  large  ma- 
jorities. In  Louisiana  in  1896,  when  the  legislature  at- 
tempted to  amend  the  Constitution  of  that  State,  by  th( 
method  afterward  adopted  by  the  Convention  of  1898,  prac- 
tically disfranchising  the  negroes,  the  people  rejected  not 
only  this  one  amendment  affecting  the  suffrage,  but  som< 
twenty  others  as  well,  without  reason  or  discrimination,  and 
in  Nebraska  in  1896,  the  people  disposed  of  ten  amend- 
ments in  the  same  thorough  fashion.  In  this  case  the  con- 
crete thing  at  which  they  were  trying  to  vent  their  dis- 
gust was  a  proposition  of  the  legislature,  that  it  should  it- 
self fix  the  rates  of  salaries  of  the  various  executive  officers 
of  the  State,  and  otherwise  enlarge  its  own  powers.  Th< 
honorarium  of  these  officials  hitherto  had  been  definitely  lim- 
ited by  the  Constitution.  In  1898  in  California,  when  seven 
amendments  and  a  proposition  to  call  a  convention  were  sub- 
mitted to  popular  vote,  only  one  amendment,  and  that  a  very 
important  measure  in  reference  to  the  executive  department, 
was  saved  from  the  general  debacle.  The  opposition  in  this 
case  seemed  to  center  about  a  proposal  which  the  legislature 
had  made  to  extend  the  length  of  its  sessions,  and  to  increase 
the  salaries  of  its  members. 

In  some  instances,  this  tendency  produces  quite  a  con- 
trary result.     Thus  a  measure  having  popularity  with  th( 
electors,  will  sometimes  exert  an  influence  to  help  through 
proposition  to  the  passage  of  which  the  people  are  indiffer- 


AMENDMENT  BY  THE  LEGISLATIVE  METHOD"  171 

ent,  or  perhaps  really  hostile.  In  South  Dakota  in  1896, 
when  a  proposal  was  made  to  repeal  a  "  prohibition  "  clause 
which  had  earlier  been  inserted  in  the  Constitution  of  the 
State,  three  other  amendments  were  carried  along,  which, 
though  of  rather  a  colorless  character,  might  not  have  fared 
so  well  had  it  been  a  question  of  enacting  rather  than  re- 
scinding the  prohibitory  liquor  law.  Some  such  influence 
would  seem  to  have  been  at  work,  too,  in  Minnesota,  in  1896, 
when  it  was  proposed  to  tax  the  property  of  sleeping,  draw- 
ing room  and  parlor  car  companies,  telegraph  and  telephone 
companies,  express  companies,  and  insurance  companies  do- 
ing business  within  the  State.  The  people  were  so  much 
elated  with  the  idea  of  getting  a  revenue  out  of  these  cor- 
porations, which  earlier  had  seemed  to  be  escaping  the  tax 
gatherer,  that  five  other  propositions  were  approved  at  the 
same  election,  thougn  by  much  smaller  majorities. 

Nevertheless,  it  would  convey  an  erroneous  impression 
were  we  to  leave  the  subject  without  calling  attention  to  the 
many  cases  in  which  the  people  can  say  yes  and  no  at  the 
same  breath  and  really  with  a  knowledge,  it  would  appear, 
of  what  those  words  mean.  In  November,  1898,  three 
amendments  were  referred  to  popular  vote  in  South  Dakota, 
all  of  first  rate  importance,  one  to  introduce  into  the  State's 
political  system  the  Swiss  referendum  and  initiative  (23,816 
for,  and  16,483  against),  another  to  confer  suffrage  upon 
women  (19,689  for,  and  22,983  against),  a  third  to  introduce 
a  dispensary  system  by  which  the  State  would  take  charge  of 
the  liquor  business  (22,170  for  and  20,557  against).  The 
returns  show  therefore  that  the  people  accepted  two  of  the 
amendments,  but  rejected  that  one  in  reference  to  woman 
suffffrage.43  Although  only  about  one-half  of  the  persons 
voting  for  candidates  at  this  election  chose  to  vote  upon  the 
amendments,  of  those  so  doing  there  is  a  fair  presumption 
that  they  recorded  their  wishes  with  respect  to  the  different 

**  It  is  nevertheless  suspected  that  the  adoption  of  the  dispensary 
amendment  was  an  accident.  Cf.  Session  Laws  of  South  Dakota  for 
1899,  P.  73- 


172 


THE  REFERENDUM  IN  AMERICA 


subjects   submitted  to  them.     The  people  of  California 
1894  voted  on  ten  different  amendments,  approving  of  sev< 
and  disapproving  of  three,  among  the  latter  being  a  foolij 
proposition     to    move     the    capital     of     the     State,     ai 
a     proposition     to     increase     the     salaries     of     the     m< 
bers  of  the  legislature,  a  project,  as  I  have  already  noted,  fc 
which  the  people  rarely  evince  any  enthusiasm.     In  a  wore 
not  a  little  evidence  is  at  hand  to  show  that  there  is  methc 
often  in  what  at  first  sight  the  casual  onlooker  might 
tempted  to  call  pure  madness.     This,  perhaps,  is  quite  wh; 
one   should   expect,   yet  the   hope  might  be   rightly   entei 
tained  that  the  people  at  all  times  would  manifest  interes 
judgment  and  discrimination,   else  we  must  conclude  tl 
they  are  not  our  ideal  law-givers.     The  spasmodic  and 
half-hearted  law-maker,  who  does  what  is  to  be  done  in  a 
and  then  reverts  to  indifference  regarding  public  affairs,  a 
not  claim  our  unqualified  admiration.   It  may,  indeed,  be  n< 
essary  as  a  result  of  certain  natural  tendencies  in  Americ; 
political  life,  which  have  long  been  at  work,  to  accede  to  tl 
view  that  the  people  are  a  proper  and  competent  authorit; 
finally  to  pass  upon  amendments  to  their  constitutions.    Bt 
while  recognizing  the  force  of  historical  development,  and 
that  adheres  to  it,  it  is  certainly  a  duty  to  call  attention 
the  fact  that  in  practice,  the  system  is  liable  to  great  obj< 
tions.     We  are  doubtless  committed  thoroughly  to  a  thii 
body  of  legislators,  that  is,  the  electors  themselves,  who  1 
been  introduced  to  so  large  an  extent  to  supplement  tl 
work  of  the  representative  assemblies,  i.  e.,  the  legislature 
and  the  conventions.     Nevertheless  they  are  not  what 
would  have  them  be. 

In  these  chapters  we  have  looked  a  little  way  into  the 
ord  of  the  people  as  the  makers  of  their  own  constitution; 
law  as  it  is  submitted  to  them  by  the  conventions  and  tl 
legislatures.  It  is  now  time  to  pass  on  to  an  examination 
the  people's  powers  and  qualifications  as  their  own 
makers  in  respect  of  other  classes  of  legislation. 


CHAPTER  VII 

THE     REFERENDUM     ON     STATUTES     OF     GENERAL     OPERATION 

WITHIN   THE  STATE   WHEN   THE  VOTE  OF  THE   PEOPLE 

IS  AUTHORIZED  BY  THE  STATE  CONSTITUTION 

WE  have  come  now  to  the  legislature's  submission  of  stat- 
utory legislation  to  the  people  and  we  are  to  inquire  whether 
it  is  necessary  for  the  legislature  to  embody  its  bill  in  the 
form  of  a  constitutional  amendment,  if  it  should  desire  to 
escape  its  full  responsibility  as  a  law-giver.  The  people  have 
constituted  the  legislature  in  its  field,  and  the  convention  in 
its  field,  to  represent  them  and  to  legislate  for  them;  is  it 
competent  for  either  to  refer  the  work  back  again  to  the 
people?  There  is  no  particle  of  doubt  that  the  convention 
may  call  upon  the  electors  to  approve  or  reject  its  proposals, 
and  indeed  the  American  tendencies  lead  us  straightway  to 
the  view  that  a  neglect  of  this  submission  is  a  very  irregular 
course,  if  not  one  that  is  fraught  with  positive  peril  to  the 
State.  From  the  convention  our  organic  law  is  derived.  That 
body  gives  the  government  basic  character  and  form,  creates 
the  legislature  and  endows  it  with  its  authority  as  an  organ 
in  the  constitutional  system.  The  legislature  thus  acts  un- 
der delegation  of  authority  from  the  convention ;  can  it  again 
lay  its  mantle  upon  other  shoulders  without  some  specific 
direction  to  do  so  from  the  constituent  power  in  the  State, 
which  sometimes,  of  course,  is  the  convention  itself,  regularly 
assembled  by  the  legislature,  or  more  often  the  convention 
and  the  whole  body  of  electors,  or  again,  in  the  case  of 
amendments,  the  legislature  and  the  electoral  body,  co-oper- 
ating? If  the  law-making  power  is  regularly  entrusted  to 
other  bodies,  for  instance  to  local  communities,  as  is  often 
the  case,  to  the  Governor,  to  judicial  officers,  to  boards  and 

173 


174  THE  REFERENDUM  IN  AMERICA 

commissions,  all  of  which  have  come  to  exercise  legislative 
authority  of  more  or  less  importance,  we  are  accustomed  to 
regard  it  as  a  strictly  legal  development,  if  not,  indeed,  a 
scientifically  correct  development  from  the  point  of  view  of 
political  philosophy.  There  is  no  room  to  doubt  then  that 
the  makers  of  the  constitution  may  place  the  legislative  au- 
thority of  the  State  in  the  hands  of  the  people,  if  this  is  a 
change  of  which  they  approve.  If  it  is  desirable  to  find 
new  law-making  agency,  other  than  the  two  houses,  or  to 
divide  this  power  among  several  authorities,  the  constituent 
assembly  is  undoubtedly  competent  to  make  these  reforms 
in  our  system  of  government.  Just  as  it  might  clothe  some 
one  person  or  committee  of  persons  with  the  legislative 
power  in  the  State,  if  this  government  were  still  "  republi- 
can "  within  the  meaning  of  the  Federal  Constitution,  so  it 
may  go  to  the  whole  people  and  give  them,  under  such  con- 
ditions as  may  seem  to  be  suitable  and  expedient,  the 
power  themselves  to  enact  the  law  either  upon  all  subjects 
or  upon  some  prescribed  classes  of  subjects.  It  is  this  de- 
velopment which  is  to  be  traced  in  this  place  and  we  secure 
at  once  a  point  d'appid  for  the  referendum  in  America,  out- 
side of  the  field  of  constitutional  law. 

We  come  in  the  first  place,  therefore,  to  South  Dakota, 
which  in  1898  introduced  the  referendum  on  statute  laws 
in  a  more  extended  form,  and  has  determined  to  give  the 
principle  a  wider  application  than  any  other  Commonwealth. 
This  change,  one  of  the  most  important  that  has  ever  been 
made  in  the  American  system  of  government,  was  accom- 
plished by  amending  a  section  of  the  State  Constitution, 
which  is  common  to  the  Constitutions  of  all  the  States,  in 
effect,  if  in  slightly  altered  language,  and  which  in  South 
Dakota  ran  as  follows :  "  The  legislative  power  shall  be 
vested  in  a  legislature  which  shall  consist  of  a  senate  and  a 
house  of  representatives  ".*  This  clause  has  now  been 
amended  so  that  while  "  the  legislative  power  of  the  Stats  " 
is  still  vested  in  an  assembly  of  two  houses,  "  the  people  ex- 

1  Constitution  of  South  Dakota  of  1889,  art.  iii,  sec.  i. 


ON  STATUTES  OF  GENERAL  OPERATION    175 

pressly  reserve  to  themselves 'the  right  to  propose  measures, 
which  measures  the  legislature  shall  enact  and  submit  to  a 
vote  of  the  electors  of  the  State  "  (the  right  of  initiatiye  and 
the  referendum  combined),  while,  too,  the  people  reserve  to 
themselves  the  right  "  to  require  that  any  laws  which  the 
legislature  may  have  enacted  shall  be  submitted  to  a  vote  of 
the  electors  of  the  State  before  going  into  effect,  except  such 
laws  as  may  be  necessary  for  the  immediate  preservation  of 
the  public  peace,  health  or  safety,  support  of  the  State  gov- 
ernment and  its  existing  public  institutions "  (the  refer- 
endum pure  and  simple).  The  people  may  initiate  laws 
for  submission  to  popular  vote  upon  the  petition  of  five  per 
cent,  of  the  whole  number  of  the  "  qualified  electors  of  the 
State  ".  They  may  require  a  vote  upon  any  law  which  has 
earlier  been  passed  by  their  representatives  in  the  legislature, 
with  the  exceptions  noted,  upon  the  request  of  a  similar 
number  of  persons.  It  is  interesting  to  observe  that  the 
Governor,  with  this  development,  ceases  longer  to  exercise 
the  veto  power  with  respect  to  such  laws  as  may  be  initiated 
by  the  people  upon  their  own  petition.  While  in  the  case 
of  a  bill  which  has  originated  in  the  legislature,  there  being 
no  method  of  knowing  whether  five  per  cent,  of  the  electors 
of  the  State  will  later  ask  for  a  submission  of  it  or  not,  the 
Governor  will  certainly  exercise  his  prerogative  as  before. 
"his  is  manifestly  the  only  course  to  pursue.  If  the  veto 
isposes  of  the  bill,  the  people  will  need  to  revive  it  through 
;ir  own  initiation,  should  they  wish  to  bring  it  to  popular 
te.  The  amendment  specifically  confers  upon  the  legisla- 
ire,  the  power  to  make  suitable  regulations  "  for  carrying 
into  effect  the  provisions  of  this  section  ",  and  the  system  by 
this  means  will  soon  be  developed  in  greater  detail,  much  to 
the  interest  and  enlightenment  of  students  of  government 
in  the  United  States.2 

a  Session  Laws  of  South  Dakota  for  1897,  p.  88,  art.  iii,  sec.  i,  of  the 
Constitution  of  South  Dakota,  as  amended  by  vote  of  the  people  at  the 
election  in  November,  1898,  reads  as  follows:  "The  legislative  power 
of  the  State  shall  be  vested  in  a  legislature,  which  shall  consist  of  a 


176  THE  REFERENDUM  IN  AMERICA 

One  of  the  earliest  instances  of  the  submission  of  statutory 
legislation  to  popular  vote  in  the  States,  is  met  with  in  con- 
nection with  the  choice  of  sites  for  capitals.  In  new  States 
this  is  a  matter  calling  forth  a  great  deal  of  interest  among 
the  people,  and  moreover,  it  is  one  likely  to  stir  up  the  feel- 
ings of  the  representatives'  constituents  to  such  a  depth  that 
neither  convention  nor  legislature  is  very  eager  to  decide 
the  question  definitively  at  its  own  risk.  Several  conven- 
tions have  submitted  this  subject  of  the  location  of  the  seat 
of  State  government  to  popular  vote,  and  it  is  regarded  now 
as  a  proper  matter  for  a  referendum  by  the  Constitutions 
of  many  States.  When  Texas  was  annexed,  in  1845,  the 
Constitution  with  which  the  State  entered  the  Union  pro- 
vided that  an  election  for  a  capital  should  be  held  in  1850 
from  among  the  different  places  considered  to  be  eligible 
for  the  enjoyment  of  this  honor  and  distinction.  If  any  one 
of  the  different  places  voted  for  should  have  "  a  majority 
of  the  whole  number  of  votes  cast ",  the  seat  of  government 

senate  and  house  of  representatives,  except  that  the  people  expressly 
reserve  to  themselves  the  right  to  propose  measures,  which  measures 
the  legislature  shall  enact,  and  submit  to  a  vote  of  the  electors  of  the 
State,  and  also  the  right  to  require  that  any  laws  which  the  legislature 
may  have  enacted  shall  be  submitted  to  a  vote  of  the  electors  of  the 
State  before  going  into  effect,  except  such  laws  as  may  be  necessary 
for  the  immediate  preservation  of  the  public  peace,  health  or  safety, 
support  of  the  State  government  and  its  existing  public  institutions ; — 
provided  that  not  more  than  five  per  centum  of  the  qualified  electors 
of  the  State  shall  be  required  to  invoke  either  the  initiative  or  the  ref- 
erendum. This  section  shall  not  be  construed  so  as  to  deprive  the 
legislature  or  any  member  thereof,  of  the  right  to  propose  any  meas- 
ure. The  veto  power  of  the  executive  shall  not  be  exercised  as  to 
measures  referred  to  a  vote  of  the  people.  This  section  shall  apply  to 
municipalities.  The  enacting  clause  of  all  laws  approved  by  vote  of  the 
electors  of  the  State  shall  be :  'Be  it  enacted  by  the  people  of  South 
Dakota.'  The  legislature  shall  make  suitable  provisions  for  carrying 
into  effect  the  provisions  of  this  section."  Ordinarily  laws  in  South 
Dakota  have  run,  "  Be  it  enacted  by  the  Legislature  of  the  State  of 
South  Dakota ",  though  even  with  representative  legislatures  in  some 
States,  the  phrase  has  been  "  Be  it  enacted  by  the  people  of  the  State 

of "  or  "  The  people  of  the  State  of  -      —  enact  ".     Cf.  Session 

Laws  of  South  Dakota  for  1899,  pp.  121  et  seq.  Laws  of  Oregon, 
1899,  p.  1129.  j* 


ON  STATUTES  OF  GENERAL  OPERATION    i?7 

was  to  be  located  there.  If  no  one  place  received  so  many 
votes,  a  second  election  was  to  be  held  between  the  two  high- 
est on  the  list.3  Accordingly  the  legislature,  in  January, 
1850,  passed  an  act,  submitting  the  question  to  the  people, 
in  the  manner  contemplated  by  the  Constitution.4 

Oregon  by  her  Constitution  of  1857  authorized  the  legis- 
lature "  at  the  first  regular  session  after  the  adoption  of  the 
Constitution  ",  to  arrange  for  a  referendum  upon  the  capital 
question.5 

The  Constitution  of  Kansas  of  1859,  the  first  Constitution 
of  the  State,  and  the  one  which  is  still  in  force,  fixed  the  seat 
of  government  temporarily  at  Topeka.  The  legislature  at 
its  first  session,  however,  was  to  submit  the  question  of  the 
permanent  location  of  the  capital  to  popular  vote.6 

Denver  was  selected  as  the  permanent  seat  of  government 
of  Colorado,  by  a  referendum  taken  in  1881.  The  Consti- 
tution of  that  State  framed  in  1876  had  authorized  the  legis- 
lature at  its  first  session  to  submit  the  subject  to  the  people. 
As  in  Texas,  if  no  one  place  received  the  necessary  majority 
of  the  votes  cast,  choice  between  the  two  places  which  had 
got  the  largest  number  of  votes  at  the  first  election  was  to  be 
made  at  a  second  polling.  Only  one  election  was  neces- 
sary.7 

A  similar  course  was  pursued  in  South  Dakota  in  1889, 
when  that  State  entered  the  Union,  with  respect  to  the  se- 
lection of  the  capital.  The  legislature  was  to  refer  the  ques- 
tion to  the  people  at  its  first  session  after  the  admission  of  the 
State.  This  election  was  held  in  November,  1890.  The 
question  of  the  choice  of  a  town  to  serve  temporarily  as  the 
State  capital,  had  been  previously  voted  on  by  the  people  of 

8  Constitution  of  1845,  art.  Hi,  sec.  35. 

*Laws  of  the  Third  Legislature  of  the  State  of  Texas,  chapter  Ixvii, 
P-  77- 

"Art.  xiv,  sec.   i. 

8  Constitution  of  Kansas,  art.  xv,  sec.  8. 

7  Constitution  of  1876,  art.  viii,  sec.  2.  The  vote  was  taken  Novem- 
ber 8,  1881,  and  it  resulted  as  follows: — Denver  30.248,  Pueh1o  6047, 
Colorado  Springs  4,790,  Canon  City  2,788,  Salida  695,  Scattering  929. 


i/8  THE  REFERENDUM  IN  AMERICA 

South  Dakota  in  1889,  the  proposition  having  then  been  sul 
mitted  by  the  constitutional  convention.8 

The  Constitution  of  Montana,  of  1889,  provided  for  a  vot 
in  1892  on  the  question  of  locating  the  seat  of  government 
of  that  State,9  and  in  Washington  in  1889,  the  Conventk 
submitted  the  same  question.  If  a  majority  of  votes  wei 
not  cast  for  any  town  at  the  first  balloting  the  legislatui 
was  to  arrange  for  a  subsequent  election  on  the  subject.10 

Once  the  seat  of  government  has  been  located  there  is  risl 
of  course  that  it  may  be  removed  again,  and  the  legislatui 
in  several  of  the  States  is  put  under  restraint  to  the  exte 
that  it  may  not  pass  any  law  to  change  a  capital  site  without 
first  submitting  the  statute  to  the  people  for  their  ratifica- 
tion.    For  instance,  the  Pennsylvania  Constitution  of 
declares  that,  "  No  law  changing  the  location  of  the  capit 
of  the  State  shall  be  valid  until  the  same  shall  have 
submitted  to  the  qualified  electors  of  the  Commonwealth 
a  general  election,  and  ratified  and  approved  by  them  "." 
Provisions  somewhat  akin  to  this  occur  in  the  present  Consti: 
tutions    of    the     following     States:     California,     Colorad( 
Georgia,  Idaho,  Minnesota,  Mississippi,  Montana,  Nebrask; 
Oregon,    Washington   and    Wyoming.     California   require 
that  the  law  proposing  the  change,  before  it  is  submitt< 
to  the  people,  shall  be  passed  by  a  "  two-thirds  vote  of  eacl 
house  of  the  legislature  ",  while  Georgia  requires  the  sai 
vote  as  in  the  case  of  constitutional  amendments,  that 
"  two-thirds   of   the   members   elected   to   each   of   the   two 
houses  ".     In  the  other  States,  regular  majority  passage,  as 
in  the  case  of  ordinary  laws,  seems  to  suffice.     In  Colorado, 
Montana  and  Washington,  a  two-thirds  rather  than  a  simple 
majority  vote  of  the  people  is  necessary  to  ratify  the  propo- 
sition.    In  Oregon  the  legislature  is  prohibited  from  sub- 
mitting  such    a   proposal   until    twenty   years   after    1857, 

8  Constitution   of    1889,   art.   xx. 

9  Constitution  of   1889,   art.  x,   sec.  2. 

10  Constitution  of   1889,  art.  xiv,  sec.   i. 

11  Art.  iii,  sec.  28. 


ON  STATUTES  OF  GENERAL  OPERATION 

in  Idaho  until  twenty  years  after  1889,  and  in  Wyoming 
until  ten  years  after  1889.  It  must  be  understood,  of  course, 
that  the  legislature  is  still  free  to  propose  constitutional 
amendments  to  the  people  on  the  same  subject,  and  on  prac- 
tically the  same  terms.  This  point  was  made  clear  in  Cali- 
fornia in  1893,  the  legislature  having  submitted  a  proposition 
to  change  the  seat  of  government  of  the  State,  in  the  form 
of  a  constitutional  amendment,  when  it  could  as  well  have 
embodied  its  proposal  in  a  statute.  A  referendum  would 
have  been  required  in  either  case.12  For  even  when  the 
Constitutions  are  silent  respecting  the  submission  of  statu- 
tory legislation  of  this  character,  the  door  still  stands  open 
for  a  poll  of  the  people  on  this  subject  through  a  constitu- 
tional amendment.  In  the  case  when  the  capital  of  a  State 
has  been  definitely  fixed  by  the  convention,  and  is  named  in 
the  constitution,  it  is  plain  that  it  can  only  be  changed  when 
the  constitution  is  changed.  Many  of  the  State  Constitu- 
tions contain  provisions  of  this  character,  as  for  example, 
in  Missouri,  where  it  is  declared  that  "  the  General  Assembly 
shall  have  no  power  to  remove  the  seat  of  government  of  this 
State  from  the  city  of  Jefferson  ",13  The  State  legislature, 
quite  undeterred,  however,  desiring  recently  to  take  the  sense 
of  the  people  on  the  question  of  a  removal  of  the  capital  to 
Sedalia,  made  such  a  proposal  in  the  form  of  a  constitutional 
lendment,  which  was  voted  on  and  rejected  at  a  refer- 
endum in  1896.  It  has  become  as  easy  in  Missouri,  and  this 
true  in  many  other  States,  for  the  legislature  to  pass  a 
mstitutional  amendment  as  an  ordinary  bill. 
Of  a  somewhat  similar  character  are  statutes  which  the 
^islature  is  sometimes  authorized  to  submit  to  the  people 
reference  to  the  selection  of  sites  for  State  universities, 
leemosynary,  correctional  and  like  institutions.  This  is  a 
ibject  of  only  a  little  less  interest  to  the  people  than  the 
loice  of  a  spot  at  which  the  State  capital  buildings  shall  be 
rected.  The  rivalry  of  the  towns  in  the  newer  States  for 

12  Cf.  Livermore  v.  Waite,   102  Cal.,  p.   113. 

13  Constitution  of  1875,  art.  iv,  sec.  56. 


i  So 


THE  REFERENDUM  IN  AMERICA 


the  honor  of  possessing  these  institutions,  has  often  assume( 
strange  and  amusing  proportions.    There  is,  of  course,  mon 
than  a  local  pride  involved,  for  State  buildings  are  likely  tc 
enhance  the  value  of  real  estate  in  the  vicinity  and  to  opei 
the  way  to  subsistence  and  profit  to  a  considerable  numbe 
of  people  who  perhaps  purvey  to  the  institutions,  or  other- 
wise directly  or  indirectly  benefit  from  the  distribution  oi 
large  amounts  of  public  money.     In  no  recent  case  has  th< 
contest  for  public  buildings  reached  such  comical  dimensions 
perhaps  as  in  South  Dakota  in  1889  and  1890. 

The  people  of  Texas  in  1881  at  the  invitation  of  the  legis- 
lature, voted  upon  the  question  of  a  choice  of  site  for  a  State 
university,  a  referendum  which  had  been  contemplated  wh( 
the  constitution  was  framed.  The  Convention  of  1876  d( 
clared  that  "  the  legislature  shall,  as  soon  as  practicable,  es 
tablish,  organize  and  provide  for  the  maintenance,  suppoi 
and  direction  of  a  university  of  the  first  class,  to  be  locate( 
by  a  vote  of  the  people  of  this  State,  and  styled  *  the  Uni- 
versity of  Texas  '  ".14  The  legislature  got  ready  to  submil 
the  question  in  1881,  when  somewhat  exceeding  the  stricl 
terms  of  its  authority,  three  propositions  were  referred 
the  people:  First,  should  the  medical  department  and  the 
main  university  be  separated ;  second,  if  so,  where  should  the 
main  university  be  established,  and  third,  where  should  the 
medical  school  be  located.  The  people  of  the  State  deter- 
mined that  this  "  university  of  the  first  class  "  should  be  of 
two  parts, — the  main  institution  being  placed  in  Austin,  the 
capital  of  the  State,  the  medical  department  at  Galveston, 
the  leading  port  and  commercial  city  of  the  State.15  Per- 
missive authority  was  conferred  upon  the  legislature  also  to 
"  establish  and  provide  for  the  maintenance  of  a  college  or 
branch  university  for  the  instruction  of  the  colored  youths 
of  the  State,  to  be  located  by  a  vote  af  the  people  ",16  This 

"Art.  vii,   sec.    10. 

"General  Laws  of  Texas   for   1881,  pp.   77-79;   McPherson's  Hand- 
book for  1882,  p.  80. 

18  Constitution  of   1876,  art.  vii,  sec.   14. 


ON  STATUTES  OF  GENERAL  OPERATION    181 

referendum  seems  not  yet  to  have  been  taken,  though  certain 
lands  have  been  set  aside  by  the  legislature  which  are  to  ac- 
crue to  a  fund  for  the  endowment  of  this  "  branch  univers- 
ity "  for  the  colored  people. 

The  Wyoming  Convention  of  1889,  at  the  same  time  that 
it  chose  a  site  for  the  capital,  which  it  was  specified  the  legis- 
lature should  not  remove  until  after  ten  years,  and  then  only 
upon  yote  of  the  people,  adopted  a  like  rule  with  respect  to 
the  State  university,  the  State  insane  asylum  and  the  State 
penitentiary.  After  ten  years,  the  legislature  may  move 
these  institutions  to  new  sites,  in  case  the  propositions  for 
removal  shall  be  submitted  to  the  people  and  be  approved 
by  "  a  majority  of  all  votes  upon  said  question  cast  at  such 
election ".  Furthermore,  the  Constitution  declares  that 
"'  the  legislature  shall  not  locate  any  other  public  institutions 
except  under  general  laws,  and  by  vote  of  the  people  ".1T 
Under  authority  derived  from  this  clause  of  the  Constitution, 
several  referenda  have  been  taken  in  Wyoming,  as  in  1892, 
to  locate  a  State  institution  to  be  known  as  the  "  Home  for 
Friendless  Women  and  Children ".  The  legislature  here 
somewhat  exceeded  its  delegated  power  in  asking  the  people 
first  to  determine  the  general  point  as  to  whether  such  a 
ome  should  be  established  or  not.  The  Constitution  con- 
mplated  that  the  legislature  would  decide  this  larger  ques- 
n  as  to  the  establishment  of  the  institution  on  its  own  re- 
nsibility.18  In  the  same  year  the  people  of  Wyoming 
ere  asked  to  select  a  site  for  a  State  Hospital  for  Miners.19 
e  legislature  declared  that  at  the  election  "  every  city,  town 
village  in  the  State  of  Wyoming  at  or  within  three  miles 
of  which  shall  be  employed  not  less  than  one  thousand 
miners,  shall  be  eligible  as  a  seat  for  such  hospital  ".  Places 
were  to  be  nominated  just  as  individual  candidates  for  office 
are  nominated,  the  "  certificates  of  nomination  "  being  filed 
with  the  Secretary  of  State.20  The  people  of  Wyoming 

17  Constitution  of  1889,  art.  vii,  sec.  23. 

18  Laws  of  Wyoming  for  1890-91,  p.  330. 
"Ibid.,  p.  352.        mlbid. 


182  THE  REFERENDUM  IN  AMERICA 

were  also  consulted  in  the  year  1892  regarding  their  choice 
of  a  place  at  which  to  establish  a  State  Agricultural  College, 
some  site  to  be  selected  from  among  the  various  cities,  towns 
and  villages  of  the  State,  which  contained  not  less  than  one 
hundred  inhabitants  each,  and  were  situated  "  at  an  eleva- 
tion above  the  sea  level  of  not  more  than  5500  feet  ".21 

As  a  mark  of  the  distrust  which  the  conventions  feel  for 
the  State  legislatures,  we  find  that  an  interesting  series  of 
restraints  are  placed  upon  the  latter  with  respect  to  the  col- 
lection and  expenditure  of  public  money,  the  care  of  State 
property,  and  the  loaning  away  of  the  State's  credit.  Here 
again  the  people  have  been  introduced  in  many  States,  as  a 
check  upon  legislative  activity,  and  statutes  upon  a  large 
number  of  subjects  of  this  general  class,  which  we  will  at 
once  proceed  to  subdivide,  must  be  ratified  by  popular  vote 
before  they  can  be  of  any  effect  or  validity.  The  Consti- 
tutions are  distinct  in  their  specifications  on  this  point. 
There  is  in  the  first  place  that  rather  numerous  body  of 
States  which  limit  the  legislature  in  its  power  to  contract  in- 
debtedness on  the  State's  account  to  a  certain  definite  maxi- 
mum amount.  Under  no  circumstances,  unless  it  be  to  repel 
invasion,  suppress  insurrection  or  defend  the  State  in  time 
of  war,  a  contingency  not  very  likely  to  occur  in  the  present 
state  of  our  Federal  relations,  can  the  legislature  pass  this 
limit  unless  it  shall  first  refer  the  law  creating  the  liability  to 
a  vote  of  the  people,  and  the  latter  shall  give  the  proposition 
a  direct  sanction.  Many  of  the  States  were  involved  in  debt 
by  the  legislatures,  at  an  earlier  period,  and  their  outstanding 
obligations  were  in  some  cases  so  large  that  it  actually  led 
to  repudiation.  Several  Southern  States,  and  some  in  the 
"  Middle  West  ",  contracted  debts  and  loaned  out  the  public 
credit  beyond  their  ability  or  disposition  again  to  make  the 
amounts  good.  The  political  financiers  of  new  or  poor  and 
sparsely  settled  parts  of  the  country  thus  brought  scandal 
upon  American  statecraft,  which  it  was  generally  desired 

21  Laws  of  Wyoming  for  1890-91,  p.  373. 


ON  STATUTES  OF  GENERAL  OPERATION    183 

should  be  taken  out  of  the  field  of  possible  repetition  in  the 
future.22 

The  Convention  of  1842  in  Rhode  Island,  which  seems  to 
have  originated  this  referendum,  incorporated  a  provision 
in  the  Constitution  of  the  State  in  terms  as  follows :  "  The 
General  Assembly  shall  have  no  power  hereafter  without  the 
express  consent  of  the  people  to  incur  State  debts  to  an 
amount  exceeding  $50,000,  except  in  time  of  war  or  in  case 
of  insurrection  or  invasion  ",23  Michigan  followed  with 
an  amendment  to  her  Constitution  in  1843,  which  practically 
divested  the  legislature  of  the  entire  function  of  debt-mak- 
ing ;  for  "  every  law  authorizing  the  borrowing  of  money  or 
the  issuing  of  State  stock,  whereby  a  debt  shall  be  created  on 
the  credit  of  the  State  ",  unless  it  should  be  for  the  purpose 
of  raising  money  "  for  defraying  the  actual  expenses  of  the 
legislature,  the  judicial  and  State  officers,  for  suppressing 
insurrection,  repelling  invasion  or  defending  the  State  in 
time  of  war  ",  was  henceforth  to  be  submitted  to  the  people. 
There  was  no  limit  as  $50,000  or  $100,000,  within  which  the 
Legislature  might  exercise  a  free  hand.  Every  law  of  this 
character  except  for  the  purposes  named  in  the  constitution 
should,  before  it  took  effect,  be  approved  "  by  a  majority  of 
all  the  votes  cast  for  and  against  it  "  at  a  general  election.24 
The  New  Jersey  Convention  of  1844  named  a  limit  like 
Rhode  Island,  placing  the  maximum  amount,  beyond  which 
the  legislature  might  not  go,  without  a  referendum,  at 
$ioo,ooo.25  Iowa  and  New  York  adopted  similar  provisions 
in  1846,  and  to-day  this  referendum  is  established  in  thirteen 
states,  with  varying  conditions  and  limits,  which  may  be 
briefly  set  forth  as  follows : 

California,  referendum  when  the  debt  exceeds         $300,000 
Illinois  in   1848,  "       "       "  "  50,000 

22  An  excellent  work  giving  the  history  of  this  rather  discreditable 
phase  of  American  public  finance  is  The  Repudiation  of  State  Debts,  by 
W.  A.  Scott,  Ph.D.,  New  York,  1893  23  Art.  iv,  sec  13. 

24  Amendment  to  the  Constitution  of  1835,  No.  2. 

25  Constitution  of  1844,  art.  iv,  sec.  6, 


i84 


THE  REFERENDUM  IN  AMERICA 


Illinois  in  1870,  refer' m  when  the  debt  exceeds 

Iowa, 

Kansas, 

Kentucky, 

Missouri, 

Montana, 

New  Jersey 

New  York, 

Rhode  Island, 

Washington, 


$250,000 
250,000 

1,000,000 
500,000 
250,000 
100,000 
100,000 

1,000,000 

50,000 

400,000 


Idaho,  a  referendum  when  the  indebtedness  which  it  is 
proposed  to  create  exceeds  the  sum  of  ij  per  cent,  of  the  as- 
sessed value  of  the  taxable  property  in  the  State. 

Wyoming,  a  referendum  when  the  debt  to  be  incurred  in 
any  year  exceeds  the  revenues  for  that  year.26 

This  limited  power  to  issue  bonds  and  put  out  State  paper 
is  granted  to  the  legislature,  it  is  usually  explained,  in  order 
"  to  meet  deficits  or  failures  in  the  revenue  ",  although  in 
Kansas  it  seems  to  be  for  "  defraying  extraordinary  ex- 
penses and  making  public  improvements  ".  In  nearly  all 
cases  it  is  directly  asserted,  or  the  inference  is  plain,  that 
the  limit  is  meant  to  apply  not  to  new  loans  solely,  but  to  all 
which  have  gone  before  and  are  outstanding  in  the  State's 
name.  No  debt  or  liability  is  to  be  incurred  which  shall 
"  singly  or  in  the  aggregate  with  any  existing  debt  or  lia- 
bility "  exceed  the  sum  designated  in  the  constitution  unless 
the  law  is  first  submitted  to  and  approved  by  the  people. 
In  Missouri,  however,  the  limit,  $250,000,  appears  to  relate 
to  debts  incurred  in  any  one  year,  an  important  modification 
of  the  rule.  There  is  a  provision  common  to  most  of  the 
constitutions  that  the  restriction  shall  not  apply  to  debts  con- 
tracted "  to  repel  invasion,  suppress  insurrection  or  defend 

e6  In  Nebraska  by  the  Constitution  of  1866  there  was  a  referendum 
when  the  debt  was  in  excess  of  $50,000.  By  the  present  Constitution 
of  the  State,  adopted  in  1875,  there  is  no  provision  for  a  popular  vote 
on  this  subject. 


ON  STATUTES  OF  GENERAL  OPERATION    185 

the  State  in  time  of  war  ".  In  nearly  all  the  States  it  is 
specified  also  that  at  the  time  the  law  authorizing  the  legis- 
lature to  incur  the  debt  is  submitted  to  popular  vote,  another 
law  shall  accompany  it,  levying  a  tax  sufficient  regularly 
to  pay  the  interest  on  the  amount,  and  also  the  principal 
within  a  given  number  of  years,  as  for  instance,  eighteen, 
twenty,  thirty  or  thirty-five.  In  the  usual  case  the  constitu- 
tions find  a  majority  of  all  the  votes  cast  upon  the  proposal 
sufficient  to  pass  it,  though  Illinois  prescribes  a  "  majority 
of  the  votes  cast  for  members  of  the  General  Assembly  ", 
and  Missouri  requires  "  a  two-thirds  majority  ".  The  refer- 
endum as  a  rule  is  taken  at  a  general  election  though  in 
Missouri  it  must  be  at  an  election  "  held  for  that  purpose  ", 
i.  e.,  at  a  special  election. 

Instances  of  such  referenda  are  not  at  all  rare.  Recent 
cases  are  to  be  found  in  New  York  in  1895,  when  the  people 
were  asked  to  confer  upon  the  legislature  power  to  issue 
bonds  to  the  amount  of  $9,000,000  "  for  the  improvement  of 
the  Erie  Canal,  the  Champlain  Canal  and  *he  Oswego 
Canal ",  State  waterways  which  stood  in  need  of  extensive 
repairs ; 27  and  in  California  in  1892  when  the  California 
legislature  invited  the  electors  to  assent  to  a  loan  of 
$600,000  for  the  construction  and  furnishing  of  "  a  general 
railroad,  passenger  and  ferry  depot "  in  San  Francisco,28 
nd  a  loan  of  $2,528,500  for  the  purpose  of  taking  up  and 
funding  certain  outstanding  State  issues.29 
The  new  Constitution  of  South  Carolina  altogether  pro- 
ibits  the  legislature  from  creating  "  any  further  debt  or 
bligation,  either  by  the  loan  of  the  credit  of  the  State,  by 
ranty,  endorsement  or  otherwise,  except  for  the  ordinary 
and  current  business  of  the  State  ",  unless  it  shall  submit 
the  question  to  the  qualified  electors  of  the  State,  and  two- 
thirds  of  those  voting  on  the  proposition  shall  approve  the 
law.30  In  many  States  other  kinds  of  restraints  are  placed 

27  Banks'  Revised  Statutes  of  New  York,  gth  edition,  p.  3020. 

28  Statutes  of  California,   1891,  p.   no. 

*  Ibid.,  p.  210.         30  Constitution  of  1895,  art.  x,  sec.  n. 


1 86  THE  REFERENDUM  IN  AMERICA 

upon  the  legislatures  with  respect  to  the  contraction  of  debt. 
Some  conventions  have  wholly  withdrawn  the  power  from 
the  legislatures;  again,  definite  limits  are  sometimes  pre- 
scribed beyond  which  the  legislature  cannot  go  under  any 
circumstances,  even  with  the  popular  assent ;  again,  loan 
bills  must  often  be  passed  by  a  number  of  members  of  the 
legislature  larger  than  a  simple  majority,  and  there  are  other 
methods  employed  by  the  conventions  with  a  view  to  making 
it  difficult  for  the  representatives  to  incur  financial  obliga- 
tions, which  are  likely  to  occasion  trouble  and  disaster  later 
on.  Of  course,  in  all  these  cases,  if  the  legislature  finds 
such  a  restriction  a  serious  affair,  it  may  initiate  an  amend- 
ment to  the  constitution  proposing  a  change  in  the  terms  of 
the  restraining  provision,  and  here  again  there  is  no  one  be- 
tween the  existing  order  and  those  who  would  create  the 
debt,  but  the  people  themselves. 

There  are  a  number  of  States  too  in  which  the  conventions 
have  made  still  more  specific  reservations  regarding  the  con- 
traction of  indebtedness  on  public  account.  A  deal  of  the 
bad  financiering  by  the  legislatures  has  been  traceable  to  sub- 
sidies and  guarantees  granted  to  internal  improvement  com- 
panies, with  a  view  to  conferring  benefits  on  certain  com- 
munities. Thus,  highways,  railroads  and  private  develop- 
ment companies  of  one  kind  or  another  have  repeatedly 
profited,  while  the  State  has  been  run  seriously  into  debt. 
The  conviction  has  taken  a  firm  hold  of  the  people  that 
much  of  this  legislation  was  enacted  to  serve  private 
ends,  "  to  put  money  into  circulation  "  in  certain  districts, 
to  benefit  landholders  of  one  part  of  the  State,  while  the  rest 
got  none  of  the  gain,  it  having  been  alleged  even  that  the 
legislators  received  large  bribes  in  the  way  of  stock  and  the 
like,  for  attending  to  matters  of  this  kind.  Guarantees  in 
behalf  of  railroads  have  often  disastrously  involved  the 
poorer  States.  Therefore  a  series  of  provisions  will  be 
found  in  the  Constitutions  specifically  limiting  the  legisla- 
ture in  such  appropriations,  unless  the  laws  shall  first  receive 
the  popular  assent.  North  Carolina  by  a  clause  which  dates 


ON  STATUTES  OF  GENERAL  OPERATION    187 

from  1868,  requires  a  referendum  when  it  is  a  question  of 
lending  out  the  State's  credit  "  in  aid  of  any  person,  associa- 
tion or  corporation,  except  to  aid  in  the  completion  of  such 
railroads  as  may  be  unfinished  at  the  time  of  the  adoption 
of  the  Constitution,  or  railroads  in  which  the  State  has  a  di- 
rect pecuniary  interest  ".31  The  North  Dakota  Constitution 
puts  the  legislature  under  the  same  restraint  in  loaning  its 
credit  or  making  donations  "  in  aid  of  any  individual,  asso- 
ciation or  corporation,  except  for  necessary  support  of 
the  poor " ;  in  subscribing  to  or  becoming  the  owner 
of  the  "  capital  stock  of  any  association  or  corpora- 
tion ",  or  engaging  "  in  any  work  of  internal  improve- 
ment ".  There  is  to  be  no  deviation  from  these  rules,  ex- 
cept through  the  referendum  and  a  ratification  of  each  sep- 
arate proposal  "  by  a  two- thirds  vote  of  the  people  ",32  A 
referendum  is  provided  for  by  the  Constitution  of  Wyoming, 
when  the  legislature  desires  that  the  State  shall  embark  upon 
"  any  work  of  internal  improvement ".  The  law  must  be 
approved  by  a  two-thirds  vote  of  the  people.33 

In  1860  the  Constitution  of  Minnesota  was  so  amended 
that  no  law  "  levying  a  tax  or  making  other  provision  for  the 
payment  of  interest  or  principal  of  the  bonds  denominated 
Minnesota  State  Railroad  Bonds  "  should  take  effect  unless 
it  were  directly  voted  on  and  approved  by  the  people  of  the 
State.  In  1858  an  amendment  to  the  Constitution  author- 
ized an  issue  of  bonds  to  the  value  of  $5,000,000  to  aid  in  the 
construction  of  certain  railways.  The  companies  in  some 
way  failed  to  meet  the  conditions  imposed  upon  them,  and  the 
second  amendment  was  designed  to  protect  the  State  against 
the  impulsive  action  of  the  legislature.  From  time  to  time 
various  acts  were  passed  by  the  legislature,  and  submitted 
to  the  people  with  a  view  to  adjusting  the  indebtedness  of  the 
State  as  it  was  represented  by  these  bonds,  first  in  1866,  then 
in  1867,  1870  and  1871,  some  of  which  plans  were  objection- 

81  Constitution  of    1876,   art.  v,  sec.   5. 
52  Constitution  of  1889,  art.  xii,  sec.  185. 
88  Constitution  of    1889,   art.   xvi,  sec.   6. 


1 88  THE  REFERENDUM  IN  AMERICA 

able  to  the  people  and  others  to  the  bondholders.  At  last 
the  State  Supreme  Court  in  i88i34  decided  that  the  amend- 
ment was  unconstitutional,  on  the  ground  of  its  being  an 
impairment  of  the  obligation  of  contracts,  and  a  settlement 
was  effected  by  the  legislature  without  again  submitting  the 
question  to  popular  vote. 

The  Constitution  of  Illinois  invested  the  people  of  the 
State  with  power  finally  to  determine  as  to  the  sale  or  lease 
of  the  Illinois  and  Michigan  Canal,  a  State  property.35  The 
legislature  passed  an  act  in  1882  ceding  the  canal  to  the 
United  States,  "  to  be  maintained  as  a  national  waterway 
for  commercial  purposes  ".  The  people  voted  "  For  the  act 
ceding  the  Illinois  and  Michigan  Canal  to  the  United 
States  "  or  "  Against  the  act  ceding  the  Illinois  and  Mich- 
igan Canal  to  the  United  States  "  at  the  general  election  of 
1882,  and  the  proposition  was  ratified  by  the  necessary  ma- 
jority of  the  votes  cast.36 

Another  subject  is  made  the  matter  for  a  referendum  in 
two  States,  namely,  the  appropriation  of  money  for  the  erec- 
tion of  capitol  buildings.  The  Illinois  Convention  of  1870 
restricted  the  legislature  to  an  expenditure  of  $3,500,000 
"  on  account  of  the  new  capitol  grounds  and  the  construc- 
tion, completion  and  furnishing  of  the  state  house  ".  If 
greater  outlay  were  to  be  made,  the  laws  authorizing  the  ap- 
propriation must  be  approved  by  the  people  of  the  State.37 
In  1881  a  balance  of  $531,712  was  still  needed  to  complete 
this  building.  After  the  law  which  carried  with  it  an  appro- 
priation to  cover  this  sum  was  twice  submitted  to  the  people, 
in  1882  and  1884,  it  was  finally  ratified  by  them,  and  the 
funds  were  made  available  to  the  legislature.38 

The  Constitution  of  Colorado  contemplated  a  vote  of  the 
people  upon  any  proposition  to  create  a  State  debt  "  for  the 

34  State  v.  Young,  29  Minn.,  474. 
85  Constitution  of   1870,   separate  section. 

38  Starr   and   Curtis'   Annotated   Statutes   of   the  State   of  Illinois,  26. 
edition,   Vol.   I,   p.    543. 
37  Art.  iv,   sec.   33. 
88  Cf.  Laws  of  Illinois,  1881,  p.  55;  ibid.,  1883,  P-  39!  ibid.,  1885,  p.  53. 


ON  STATUTES  OF  GENERAL  OPERATION          189 

purpose  of  erecting  public  buildings  "  which  in  any  one  year 
should  exceed  one-half  mill  on  each  dollar  of  valuation  of 
taxable  property  or  which  at  any  one  time  should  make  the 
aggregate  amount  of  such  debt  more  than  $50,000.  The 
whole  indebtedness  incurred  on  this  account  could  be  run 
up  to  three  mills  on  each  dollar  of  valuation  with  the  consent 
of  the  people  of  the  State,  but  no  higher  under  any  considera- 
tion.39 Such  proposals  have  been  repeatedly  submitted  to 
the  people  of  Colorado,  both  as  statutes  and  as  amendments 
to  the  Constitution.  Statutes  were  submitted  in  1883,  when 
bonds  to  the  amount  of  $300,000,  for  the  erection  of  the 
capitol  buildings  in  Denver  were  sanctioned  by  a  vote  of 
13,220  against  8,703;  in  1889,  when  a  law  to  create  an  addi- 
tional debt  of  $250,000  for  the  same  purpose  was  defeated 
by  a  vote  of  15,010  yeas,  and  16,286  nays;  in  1891,  when 
authority  to  issue  bonds  to  the  amount  of  $300,000  was 
asked  for  by  the  legislature,  the  people  again  refusing  the 
request  by  the  still  more  decisive  vote  of  14,543  yeas  and 
36,322  nays.40 

Turning  from  the  State's  expenditures,  which  all  these 
referenda  are  meant  to  check,  we  find  that  the  people  have 
won  a  direct  part  in  deciding  some  questions,  too,  in  regard 
to  the  State's  revenues.  Thus  the  Convention  of  Colorado 
in  1876  put  an  important  restriction  upon  the  legislature, 
when  it  declared  that  "  the  rate  of  taxation  on  property  for 
State  purposes  shall  never  exceed  six  mills  on  each  dollar 
of  valuation,  and  whenever  the  taxable  property  within  the 
State  shall  amount  to  $100,000,000  the  rate  shall  not  exceed 
four  mills  on  each  dollar  of  valuation,  and  whenever  the 
taxable  property  within  the  State  shall  amount  to  $300,000,- 
ooo,  the  rate  shall  never  thereafter  exceed  two  mills  on  each 
dollar  of  valuation,  unless  a  proposition  to  increase  such 
rate  specifying  the  rate  proposed,  and  the  time  during  which 
the  same  shall  be  levied,  be  first  submitted  to  a  vote  of  such 

89  Constitution  of  1876,  art.  xi,  sees.  3,  4  and  5. 

40  Mills'  Annotated  Statutes  of  the  State  of  Colorado,  Vol.  I,  and  Sup- 
plement, Notes  to  art.  xi,  sec.  3,  of  the  Constitution. 


19°  THE  REFERENDUM  IN  AMERICA 

qualified  electors  of  the  State,  as  in  the  year  next  preceding 
such  election  shall  have  paid  a  property  tax  assessed  to  them 
within  the  State,  and  a  majority  of  those  voting  thereon  shall 
vote  in  favor  thereof,  in  such  manner  as  may  be  provided 
by  law  ".41  An  act  to  increase  the  rate  to  five  mills  for  the 
years  1889  and  1890  was  rejected  by  the  people  in  1888,  by 
a  very  large  majority,  the  vote  standing  762  for,  and  10,102 
against.  The  vote  for  President  in  Colorado  in  the  same 
year  was  upwards  of  9O,ooo.42  The  plebiscital  feature  of 
this  provision  was  repealed  by  a  constitutional  amendment 
adopted  in  1892,  which  put  an  absolute  limit  on  the  legis- 
lature in  the  following  terms :  "  The  rate  of  taxation  on 
property  for  State  purposes  shall  never  exceed  four  mills 
on  each  dollar  of  valuation.'' 43 

Referenda  on  the  same  subject  which  are  to  be  taken  under 
very  similar  conditions  are  provided  for  by  the  Constitutions 
of  Montana  44  and  Idaho,45  when  it  is  a  question  of  estab- 
lishing tax  rates  higher  than  the  limits  there  definitely  named, 
and  the  provisions  in  these  two  States  are  still  in  effect 
to-day.  As  compared  with  Colorado  a  difference  must  be 
noted  in  that  the  law  proposing  the  increase  in  the  rate  in 
Montana  and  Idaho  is  to  be  submitted  to  "  the  people  ",  L  e., 
to  all  the  qualified  electors  rather  than  to  the  property  tax- 
payers alone,  a  restricted  portion  of  the  electoral  body. 

The  Constitution  with  which  Utah  entered  the  Union  in 
1895,  contains  a  somewhat  similar  provision.  There  taxes 
in  excess  of  five  mills  on  the  dollar  when  the  taxable  prop- 
erty shall  exceed  a  value  of  $200,000,000;  above  four  mills 
on  the  dollar  when  it  exceeds  a  value  of  $300,000,000,  must 
be  authorized  by  direct  vote  of  the  property  taxpayers  of 
the  State.46 

The  people  of  Minnesota  in  November,  1896,  voted  on  and 

41  Constitution  of  Colorado  of  1876,  art.  x,   sec.   n. 

42  Laws  of  Colorado  for  1887,  p.  29  ;  Annotated  Statutes  of  Colorado, 
1891,  p.  317,  note  to  art.  x,  sec.  u,  of  the  Constitution. 

43  Mills'  Annotated  Statutes,  Supplement,  1896,  note  to  art.  x,  sec.  II, 
of  the  Constitution. 

44  Art.  xii,  sec.  9.         "Art.  vii,  sec.  9.         48  Art.  xiii,  sec.  7. 


ON  STATUTES  OF  GENERAL  OPERATION    I91 

adopted  two  legislative  acts,47  one  touching  the  taxation  of 
certain  lands  owned  by  railway  companies  within  the  State, 
a  referendum  authorized  by  the  Constitution,48  and  another 
making  a  transfer  of  moneys  from  the  "  internal  improvement 
land  fund  ",  a  proceeding  declared  by  the  Constitution  to  be 
illegal,  except  with  the  direct  sanction  of  the  people.49 

Another  question  closely  bound  up  with  the  public  credit 
developed  into  a  subject  for  a  referendum  at  about  the  same 
time  that  the  State  legislatures  were  being  put  under  limit 
in  the  contraction  of  debt.  The  "  soft  money  "  politicians 
found  in  State  banks  an  unfailing  source  of  the  "  wealth  " 
which  they  believed  it  was  one  of  the  functions  of  a  state  to 
create.  By  chartering  banks,  and  granting  them  extended 
rights  of  issue,  a  circulating  medium  was  secured  in  outlying 
parts  of  the  Union.  Certain  public  improvements  were  thus 
helped  forward,  only  to  be  followed,  of  course,  by  serious 
collapse  later  on.  This  "  wild  cat "  banking  through  po- 
litical banks  came  to  claim  the  attention  of  the  conventions 
at  an  early  date  and  in  several  States,  beginning  with  Iowa, 
in  1846  the  people  were  introduced  as  a  direct  check  upon 
their  untrustworthy  representatives.  The  Constitution  of 
Iowa  declared  that  "  no  act  of  General  Assembly  authorizing 
or  creating  corporations  or  associations  with  banking  powers, 
nor  amendments  thereto  shall  take  effect,  or  in  any  manner  be 
in  force  until  the  same  shall  have  been  submitted  sepa- 
rately to  the  people  at  a  general  or  special  election,  as  pro- 
vided by  law,  to  be  held  not  less  than  three  months  after 
the  passage  of  the  act,  and  shall  have  been  approved  by  a 
majority  of  all  the  electors  voting  for  or  against  it  at  such 
election  ".50 

A  similar  provision  made  its  appearance  in  the  Constitu- 
tions of  Illinois  and  Wisconsin  in  1848,  of  Michigan  in  1850, 
and  Ohio  in  1851.  This  referendum  in  one  or  another  of  its 

41  Laws  of  Minnesota,   1895,  PP-  378,  728;  ibid.,   1897,  pp.  x,  xi. 

48  Constitution  of  1857,  sec.  323,  an  amendment  adopted  in  1871. 

49  Ibid.,  sec.  320,  amendment  of  1872. 

50  Constitution   of    1846,   art.   viii,   sec.   5. 


i92  THE  REFERENDUM  IN  AMERICA 

forms  is  at  present  authorized  by  the  Constitutions  of  seven 
States: — Illinois,  Iowa,  Kansas,  Michigan,  Missouri,  Ohio 
and  Wisconsin.  The  most  comprehensive  provision  in  the 
group  is  that  which  occurs  in  Wisconsin,  where  there  is  a 
double  referendum,  first  to  determine  in  a  general  way 
whether  a  law  on  this  subject  shall  be  drafted  and  submitted 
to  the  people,  and  then  when  the  law  is  prepared,  whether  or 
not  it  shall  be  adopted.51  Such  a  method  finds  its  counter- 
part in  the  usual  course  of  procedure  in  the  States,  when  it 
is  a  question  of  changing  the  constitution.  The  general 
proposition  is  first  submitted  to  the  people,  and  they  are 
asked  to  decide  whether  they  want  a  new  constitution,  and 
then  afterward  whether  they  approve  of  that  particular  con- 
stitution which  has  been  prepared  for  them.  In  some  of  the 
States  the  restriction  requiring  popular  assent  has  been  held 
to  apply  only  to  banks  of  issue,  as  in  Ohio.52  In  Missouri 
banks  of  discount  and  deposit  are  expressly  excepted  from  the 
operations  of  the  provision  and  the  legislature  may  establish 
such  institutions  at  will,  without  seeking  the  direct  author- 
ization of  the  people.  A  banking  law  was  submitted  to  the 
people  of  Wisconsin  by  the  legislature  of  that  State  in  1852, 
and  was  adopted.53  Amendments  to  this  law  have  been  sev- 
eral times  referred  to  popular  vote,  as  in  1858,  1861,  1862, 
1866  and  i867.54  An  act  specially  providing  for  the  organ- 
ization of  savings  banks  and  savings  societies  was  approved 
by  the  people  of  Wisconsin  in  i876.55  The  entire  subject 
was  committed  to  a  number  of  competent  authorities  on  the 
financial  question,  and  a  new  banking  code,  prepared  with 
much  care  and  designed  to  supersede  the  earlier  law  with 
its  amendments  was  adopted  at  a  referendum  in  iSQS.56 
In  Illinois  a  banking  act  was  adopted  by  the  people  in 

51  Constitution   of   1848,   art.  xi,   sec.   5. 

"Dearborn  v.  Bank,  42  O.   S.   617. 

68  Sanborn  and  Berryman's  Wisconsin  Statutes,  1898,  pp.  1525  et  seq. 

"Ibid.         ™Ibid.,  p.  1541. 

58  Laws  of  Wisconsin  for  1897,  chapter  303,  p.  647.  The  vote  was 
86,872  for  and  92,607  against  the  law,  or  a  total  of  179,479  as  compared 
with  a  vote  of  329,430  for  Governor  at  the  same  election. 


ON  STATUTES  OF  GENERAL  OPERATION    193 

1888,  and  amended  by  popular  vote  in  i&go.57  This  law  was 
again  amended  in  iSQS.58  It  would  be  a  tedious  and  per- 
haps profitless  task  to  follow  the  course  of  this  referendum  in 
other  States. 

In  a  certain  number  of  States,  the  extension  of  the  suffrage 
to  new  classes  of  citizens,  is  held  to  be  a  matter  which  the 
legislatures  should  not  determine,  except  upon  the  advice 
of  the  people.  Those  already  invested  with  the  privilege  of 
the  franchise,  shall  directly  sanction  or  reject  proposals 
which  may  be  made  for  an  enlargement  of  the  electoral  body. 
Few  questions  are  so  important  and  serious  in  democracies  as 
those  which  are  bound  up  with  the  suffrage.  In  nearly  all 
the  States,  this  subject  has  come  to  be  treated  in  great  de- 
tail in  the  constitutions,  and  little  latitude  is  allowed  to  the 
legislatures  in  giving  form  to  this  feature  of  our  political 
system.  If  it  is  desired,  therefore,  to  change  the  basis  upon 
which  the  suffrage  rests,  it  is  necessary  either  to  refer  the 
subject  to  the  people  in  the  form  of  a  constitutional  amend- 
ment, or  call  a  convention  to  revise  the  constitution,  which 
as  we  have  noted  already,  is  the  method  in  favor  in  the 
South,  when  it  is  desired  to  accomplish  reactionary  and  in- 
deed almost  revolutionary  results,  taking  us  backward  on 
the  line  of  universal  suffrage  and  excluding  from  further 
exercise  of  the  privilege  many  of  those  persons  who  have 
earlier  enjoyed  it.  It  is,  of  course,  a  very  difficult  matter 
to  induce  any  body  in  the  electorate  to  agree  to  its  own  dis- 
franchisement.  It  is  in  the  extension  of  the  suffrage  that  the 
people,  i.  e..  those  already  enfranchised  by  the  constitution, 
play  an  important  part  in  the  direct  enactment  of  legislation. 
Thus  the  Wisconsin  Convention  of  1848,  after  specifying 
:,what  should  constitute  the  qualifications  of  electors  within 

87  Starr  and  Curtis'  Annotated  Illinois  Statutes,  26.  edition,  1896  p. 
514. 

"Laws  of  Illinois  for  1897,  p.  184.  The  amendment  was  adopted  by 
a  popular  vote  of  124.656  yeas  and  55,773  nays,  a  paltry  total  of  180,429, 
as  compared  with  a  total  vote  of  874,115  at  the  same  election  for  State 
Treasurer,  the  leading  State  officer  on  the  ticket.  Illinois  at  the  Presi- 
dential election  of  1896  polled  a  total  vote  of  1,090,869. 


194  THE  REFERENDUM  IN  AMERICA 

that  State,  declared  "  that  the  legislature  may  at  any  time 
extend  by  law  the  right  of  suffrage  to  persons  not  herein 
enumerated,  but  no  such  law  shall  be  in  force  until  the  same 
shall  have  been  submitted  to  a  vote  of  the  people  at  a  gen- 
eral election,  and  approved  by  a  majority  of  all  the  votes  cast 
at  such  election  ".59  Under  this  clause  the  legislature  in 
1849  submitted  the  question  of  "  equal  suffrage  to  colored 
persons  ",  thus  admitting  negroes  to  voting  privileges  on  the 
same  terms  as  white  men.60  Again  in  1885  the  legislature 
submitted  an  act  to  confer  upon  women  the  right  of  suffrage 
in  school  matters.  This  proposition  came  to  popular  vote,  in 
1886,  and  was  adopted.61 

The  Convention  of  Colorado  in  1876,  had  left  to  the  dis- 
cretion of  the  legislature  of  the  State  the  question  of  bring- 
ing forward  a  measure  to  enfranchise  women.    This  bill  was 
to  become  a  law  if  it  were  approved  by  the  qualified  electors 
of  the  State  (male)  at  a  general  election.62   Very  soon  after 
Colorado  was  admitted  to  the  Union,  a  woman  suffrage  act 
was  made  the  subject  of  a  referendum.63     The  law,  how- 
ever, was  rejected  by  a  vote  of  6,612  yeas  to  14,053  nays.* 
Another  law  which  was  submitted  by  the  Colorado  legis 
lature  in  1893,  was  more  successful.65     It  was  accepted 
the  people,  the  ballots  containing  the  words  "  Equal  Sui 
frage  Approved  "  and  "  Equal  Suffrage  not  Approved  "/ 

The  Constitution  of  North  Dakota  conferred  upon  tl 
legislature  similar  authority  in  the  matter  of  "  further  ex- 
tensions of  the  suffrage  to  all  citizens  of  mature  age  and 
sound  mind,  not  convicted  of  crime,  without  regard 

M  Constitution  of  1848,  art.  Hi,  sec.  i. 

60  Laws  of  Wisconsin  for  1849,  chap.  137,  p.  85.     The  vote  was  5,2( 
for,  and  4,075  against  the  law.     Cf.  Gillespie  v.  Palmer,  20  Wis.  544. 

61  Laws  of  Wisconsin  for  1885,  chap.  211,  p.   184. 

62  Constitution  of  1876,  art.  vii,  sec.  2. 

63  Laws  of  Colorado  for  1877,  p.  648. 

64  Mills'  Annotated  Statutes  of  Colorado,  note  to  art.  vii,  sec.  2,  of  the 
Constitution.        65  Laws  of  1893.  p.   256. 

00  The  act  having  been  adopted  by  the  people,  cannot  be  repealed  by 
the  General  Assembly.  In  re  Woman  Suffrage,  Report  of  Attorney 
General  of  Colorado,  1893-4,  p.  378. 


ON  STATUTES  OF  GENERAL  OPERATION    195 

sex  ",67  But  no  law  of  this  kind,  having  for  its  purpose 
either  the  extension  or  restriction  of  the  right  of  suffrage, 
was  to  have  any  effect  until  it  was  ratified  by  a  majority  of 
the  electors  of  the  State.68  There  is  no  record  of  the  legis- 
lature having  yet  availed  itself  of  the  privilege  of  submit- 
ting to  the  people  a  law  of  this  character. 

In  South  Dakota  the  convention  provided  that  the  legis- 
lature at  its  first  session  after  the  admission  of  the  State  into 
the  Union  should  consult  the  people  upon  the  proposition  of 
striking  the  word  "  male  "  from  the  article  of  the  Constitu- 
tion relating  to  elections.69  This  question  was  submitted  to 
the  people  in  1890,  and  the  proposal  was  disapproved  of.70 
A  proposition  for  the  enfranchisement  of  women  was  again 
referred  to  popular  vote  in  South  Dakota,  in  the  form  of  an 
amendment  to  the  Constitution,  at  the  general  election  in 
1898,  when  it  was  again  rejected. 

Another  matter,  which  is  sometimes  left  to  the  treatment 
of  the  legislature,  acting  in  conjunction  with  the  people,  is 
that  of  arranging  a  scheme  of  legislative  representation  or 
system  of  apportionment.  In  Maine  by  the  Constitution  of 
1820,  plans  were  laid  for  a  membership  not  to  exceed  200 
persons  in  the  house  of  representatives  or  lower  house  of  the 
State  legislature.  When  this  limit  was  reached  it  was  the 
duty  of  the  legislature  to  take  the  sense  of  the  people,  in 
order  to  decide  if  this  number  should  be  increased  or  dimin- 
ished. No  matter  what  the  result  of  the  vote,  an  election  on 
the  same  subject  was  to  be  held  regularly  at  the  expiration  of 
every  ten  year  period  thereafter.71  A  constitutional  amend- 
ment adopted  in  1841,  made  other  arrangements  with  respect 
to  this  subject,  and  eliminated  the  referendum,  substituting 
therefor  a  definite  system  of  apportionment.  The  Consti- 
tution of  Virginia  of  1850,  provided  that  in  1865  and 
every  tenth  year  thereafter,  if  the  legislature  could  not  agree 

87  Constitution  of  1889,  art.  v,  sec.   122. 

88  Ibid.         69  Constitution  of   1889,  art.  vii,  sec.  2. 

70  Laws  of  South  Dakota  for  1890,  p.   117. 

71  Constitution  of  Maine  of  1820,  art.  iv,  part  i,  sec.  2. 


I96  THE  REFERENDUM  IN  AMERICA 

upon  a  principle  of  legislative  representation,  the  people  at 
an  election  to  be  called  for  the  purpose,  should  choose  from 
among  four  proposed  systems.  The  people  were  to  decide 
whether  representation  should  be  arranged  on  the  basis  of 
the  number  of  voters,  or  of  the  amount  of  taxes  paid,  or  of 
two  possible  mixtures  of  these  two  systems.  In  case  no  one 
system  was  the  choice  of  a  majority  of  the  voters  at  the  first 
election,  a  second  election  was  to  be  arranged  for,  as  between 
the  two  systems  which  had  proved  to  be  most  in  favor  at  the 
first  polling.72 

The  Convention  of  West  Virginia  of  1872,  authorized  the 
legislature  of  that  State  to  submit  to  the  people  in 
or  at  any  general  election  in  any  subsequent  year  "  a  pi; 
or  scheme  of  proportional  representation  in  the  senate  oi 
this  State  ",  i.  e.,  a  scheme  for  an  apportionment  of  mem- 
bers on  the  basis  of  the  number  of  inhabitants  residing  it 
the  various  districts,  according  to  the  system  generally  em- 
ployed in  organizing  the  American  lower  or  second  cham- 
bers.73 

Occasionally,  too,  the  referendum  has  found  an  applica- 
tion when  it  is  a  question  of  changing  the  boundaries  of 
State, — in  reducing  or  increasing  its  area  and  the  extent  oi 
its  territorial  jurisdiction.     Thus  when  the  so-called  "  Dis 
trict  of  Maine "  was  to  be  organized  as  a  separate  State, 
the  result  was  accomplished  by  way  of  a  plebiscite  whicl 
was  authorized  by  act  of  the  legislature  of  Massachusetts 
June  19,  1819,  of  which  State,  up  to  that  time,  the  "  Di< 
trict  "  had  been  a  part.    The  law  specified  that  "  if  the  num- 
ber of  votes  for  the  measure  shall  exceed  the  number  oi 
votes  against  it,  by  fifteen  hundred,  then  and  not  otherwise 
the  people  of  said  district  shall  be  deemed  to  have  express 
their  consent  and  agreement  that  the  said  district  shall  be- 
come a  separate  and  independent  State  ",74    The  election  w; 

72  Constitution  of  Virginia  of  1850,  art.  iv,  sec.  5.      73  Art.   vi,   sec. 

74  Laws  of  Massachusetts  passed  at  the  Several  Sessions  of  the 
eral   Court,  beginning  May,    1818,   and   ending   February,    1822,   Bostoi 
1822,  chapter  clxi,  p.  248. 


ON  STATUTES  OF  GENERAL  OPERATION    197 

held  in  the  July  following,  and  the  necessary  majority  hav- 
ing been  secured,  a  convention  was  called  to  frame  a  con- 
stitution. In  this  manner  Maine  was  admitted  to  the  Union 
of  States. 

The  Constitution  of  West  Virginia  provides  that  "  addi- 
tional territory  may  be  admitted  into  and  become  part  of 
this  State  with  the  consent  of  the  legislature,  and  a  majority 
of  the  qualified  electors  of  the  State  voting  on  the  ques- 
tion ",75 

A  referendum  of  this  general  class,  it  may  be  remarked  in 
passing,  was  authorized  by  the  Congress  of  the  United 
States  in  i846.76  The  land  which  had  been  ceded  by  the 
State  of  Virginia  to  the  Federal  government,  to  be  used  for 
the  purpose  of  establishing  a  national  capital  in  the  District 
of  Columbia,  was  not  needed  for  that  purpose.  The  Virginia 
legislature  declared  its  willingness  to  take  it  back,  where- 
upon Congress  agreed  to  the  retrocession  contingent  upon 
the  assent  of  the  people  of  the  territory  involved  in  the 
transfer,  i.  e.,  Alexandria  County.  It  was  distinctly  stated 
in  the  law  that  "  this  act  shall  not  be  in  force  until  after  the 
assent  of  the  people  of  the  county  and  town  of  Alexandria 
shall  be  given  to  it  in  the  mode  hereinafter  provided  ".  The 
vote  was  to  be  taken  "  viva  voce  upon  the  question  of  accept- 
ing or  rejecting  the  provisions  of  this  act  ",  and  in  this  man- 
ner the  territory  was  reattached  to  the  State  of  Virginia.77 
When  the  question  of  the  constitutionality  of  law-making  by 
popular  vote  afterward  came  up  in  the  State  courts  this 
case  was  freely  cited  as  a  Federal  precedent  and  one  entitled, 
therefore,  to  unusual  consideration  and  respect. 

No  one  has  ever  for  a  moment  questioned  the  full  com- 
petence of  a  convention,  or  the  constituent  authority  in  gen- 
eral, to  demand  that  laws  on  the  subjects  I  have  just  cata- 
logued in  this  chapter  or  indeed  on  any  other  subject,  shall 
be  passed  conditional  upon  their  later  acceptance  by  the 

75  Constitution  of  1872,  art.  vi,  sec.  n. 

78  Act  of  July  9,  1846,  United  States  Statutes  at  Large  from  1845  to 
1851,  P-  35.  n  Ibid. 


i98  THE  REFERENDUM  IN  AMERICA 

people.  Although  it  must  be  considered  to  be  in  violation  of 
all  our  tradition  and  unwritten  law  on  this  point,  and  out  of 
harmony  with  the  whole  system  of  representative  govern- 
ment, the  convention  may  undoubtedly  introduce  such  an 
innovation  if  it  likes.  A  usual  provision  in  the  State  consti- 
tutions is  that  "  the  legislative  authority  shall  be  vested  in  a 
legislative  assembly,  which  shall  consist  of  a  senate  and  a 
house  of  representatives  ".  It  is  clear  that  this  is  the  source 
of  the  legislature's  power,  the  title  to  its  existence,  and  th 
grant  of  its  authority.  If  all  reference  to  such  a  body  we 
omitted  from  the  constitution,  and  the  duties  earlier  en 
trusted  to  it  were  vested  in  other  agents,  as  in  the  peopl 
the  electors  at  large,  there  would  be  no  saving  power  but, 
(i),  the  Federal  Government,  which,  however,  would 
scarcely  intervene  on  the  ground  that  the  State  government 
on  this  account  was  too  democratic,  and  had  therefore  ceased 
to  be  "  republican  ",  or,  (2),  the  agents  within  the  State  it- 
self and  in  the  mercy  of  these  we  should  certainly  have  to 
put  our  faith.  All  the  various  organs  in  this  field  it  was  the 
aim  of  the  Fathers  so  to  arrange  that  one  agent  could  not  de- 
velop unduly  at  the  expense  of  another.  The  different 
checks  and  balances  interacting  one  upon  the  other  in  the 
presence  of  that  indefinite  force  known  as  public  opinion, 
must  be  the  safeguard  of  our  American  liberties. 

It  is  certain  that  the  constituent  power  may  decree  tha 
various  classes,  and  indeed  all  classes  of  laws  shall  be  pas 
subject  to  the  ratification  of  the  people,  being  only  propos 
by  the  legislature  as  by  a  committee,  and  this  point  havin 
been  established  I  shall  next  inquire  what  is  the  status  of 
law  which  is  passed  by  the  legislature,  and  submitted  to  th 
people  without  our  being  able  to  point  to  any  clause  in  th 
constitution  from  which  the  authority  for  this  submission  i 
derived. 

May  a  representative  legislature  to  which  power  has  b 
delegated  to  enact  laws  for  the  people  of  the  State  redel 
gate  its  power  or  shirk  its  task  by  referring  its  work  to  som 


! 


ON  STATUTES  OF  GENERAL  OPERATION    199 

other  agent  or  agents  ?  This  brings  us  to  an  interesting  field 
of  discussion,  into  which  many  of  our  highest  American 
State  courts  have  entered,  adding  a  great  deal  to  the  elucida- 
tion of  the  points  at  issue. 


CHAPTER  VIII 

THE     REFERENDUM     ON     STATUTES     OF    GENERAL    OPERATI01 

WITHIN  THE  STATE  WHEN  NO  AUTHORIZATION  FOR  THE 

VOTE  IS  CONTAINED  IN  THE  CONSTITUTION 

WE  distinguish  in  the  practice  of  the  States,  two  class 
of  conditional  laws, — those  affecting  the  people  of  the 
tire  State,  and  referred  to  the  whole  electoral  body  of  thu 
State,  which  are  being  considered  in  this  present  connectior 
and  those  affecting  local  districts,  municipalities  and  sul 
divisions  of  the  State,  which  will  be  separately  treated  ii 
ensuing  chapters  of  this  work.     Laws  of  the  latter  class 
now  generally  held  to  be  valid  and  constitutional,  so  that  the> 
have  come  to  occupy  a  very  important  place  in  the  legislati1 
economy  of  nearly  all  the  American  States,  but  the  formei 
class  of  laws  it  has  been  the  almost  uniform  policy  of  tl 
courts  to  disallow. 

In  the  first  place  we  have  here  to  clear  up  the  point  as  t( 
the  competence  of  the  legislature  to  give  over  its  power  oi 
legislation  to  the  people  with  respect  to  laws  which  are  of 
general  nature,  and  apply  to  the  State  at  large.     In  the  30'* 
and  4o's,  the  people  became  profoundly  impressed  regarding 
the  evils  of  intemperance,  and  the  aid  of  the  local  govern- 
ments was  invoked  as  a  means  of  regulating  the  manufac- 
ture and  sale  of  intoxicating  liquors.     The  agitation  at  las 
took  the  form  of  a  demand  that  the  business  should  be  pn 
hibited  altogether,  that  wines,  spirits,  beers,  etc.,  should  n< 
be  sold  at  all  as  a  beverage,  and  only  for  medicinal  purposes 
under  effective  restrictions.    Violations  of  the  law  were  to 
heavily  penalized. 

The  legislatures  in  many  cases,  however,  were  not  willii 
to  go  to  such  lengths  on  their  own  responsibility,  and  intr( 

200 


ON  STATUTES  OF  GENERAL  OPERATION    201 

duced  the  local  option  system  whereby  any  community,  the 
county  being  usually  regarded  as  the  unit,  could  prohibit 
the  liquor  traffic  within  its  own  borders,  upon  a  majority 
vote  of  the  electors  residing  in  the  district.  This  means  of 
repressing  the  evil  was  not  thought  to  be  far-reaching 
enough  in  some  States,  as  liquor  was  still  being  introduced 
surreptitiously  over  the  frontiers  of  the  county  which  pro- 
hibited the  business  from  neighboring  counties  which  had 
voted  to  continue  to  license  inns  and  public  houses.  Thus 
there  was  developed  a  demand  for  State  prohibition  laws, 
which  were  enacted  in  a  number  of  States,  beginning  with 
Maine  in  1851,  with  a  measure  that  soon  came  to  be  widely 
famous  as  the  "  Maine  Law  ".  It  was  entitled  "  An  act  for 
the  suppression  of  drinking  houses  and  tippling  shops  ",* 
and  it  was  passed  by  the  legislature  as  a  complete  and 
definitive  piece  of  legislation  like  any  ordinary  law.  "  This 
act  ",  the  legislature  declared,  "  shall  take  effect  from  and 
after  its  approval  by  the  Governor  ".  Later,  however,  in 
1856,  the  legislature  proposed  that  the  State  should  return 
to  the  license  system,  but  this  change  of  front  did  not  seem 
to  give  public  satisfaction.  Not  knowing  what  policy  it 
ought  to  pursue  regarding  the  troublesome  question,  the  leg- 
islature passed  a  bill  in  March  1858,  "  to  ascertain  the  will  of 
the  people  concerning  the  sale  of  intoxicating  liquors  ".2 
At  a  special  election  to  be  held  in  June  1858,  the  people 
were  asked  to  choose  between  the  "  License  Law  of  1856  " 
and  the  "  Prohibitory  Law  of  1858  ",  and  to  make  it  known 
which  they  preferred. 

That  the  people  were  to  make  or  unmake  the  law  in  this 
case  while  the  legislature  simply  stood  by  to  propose  it,  is 
clearly  evidenced  by  a  reading  of  Section  3  of  the  act  which 
was  as  follows :  "  If  it  shall  appear  f -/*•*.:*  that  upon  a  ma- 
jority of  the  ballots  so  returned  the  words  '  License  Law  of 
1856 '  are  written  or  printed,  then  the  act  entitled  '  An  act 
for  the  suppression  of  drinking  houses  and  tippling  shops ', 

1  Laws  of  Maine,   1851,  ch.  211,  p.  210. 

2  Laws  of  Maine,  1858,  ch.  50,  p.  61. 


202  THE  REFERENDUM  IN  AMERICA 

approved  March  25,  1858,  is  hereby  repealed,  and  the  act  en- 
titled '  An  act  to  restrain  and  regulate  the  sale  of  intoxicating 
liquors,  and  to  prohibit  and  suppress  drinking  houses  and 
tippling  shops  '  approved  April  7,  1856,  shall  thereby  be  re- 
vived." The  law  of  1858  having  been  approved  in  the 
referendum,  it  was  convenient  for  the  legislature  in  1867 
again  to  pass  an  act  for  ascertaining  the  sense  of  the  people 
with  respect  to  a  measure  which  it  had  just  adopted,  increas- 
ing the  penalties  for  violations  in  the  hope  of  making  the 
"  prohibition  "  policy  more  enforceable.  Those  in  favor  of 
the  act  were  to  have  the  word  "  yes  "  printed  on  their  ballots, 
and  those  opposed  to  it  the  word  "  no  ".  If  a  majority  of  the 
ballots  so  returned  had  the  word  "  yes  "  printed  or  written 
on  them,  the  act  would  thereby  be  repealed.3  In  this  connec- 
tion it  is  to  be  noted  that  the  laws  which  were  submitted  to 
the  people  of  Maine  on  these  two  occasions,  were  technically 
perfect  acts  when  they  left  the  hands  of  the  legislature. 
Nothing  was  said  in  the  laws  themselves  regarding  their 
coming  into  force  as  the  result  of  a  contingency,  such  as  the 
favorable  vote  of  the  people  in  a  referendum.  The  laws  were 
submitted  to  the  electors  afterward,  by  authority  derived 
from  separate  and  distinct  acts,  which  again  were  complete 
within  themselves,  ?  point  it  may  be  of  considerable  interest  to 
keep  in  mind  until  we  come  to  the  consideration  of  some  of 
the  legal  questions  that  have  been  brought  out  by  the  courts, 
in  reviewing  legislation  of  this  kind. 

Soon  after  the  "  Maine  law  "  of  1851  was  enacted,  and  its 
fame  had  spread  afield,  the  legislatures  of  other  States  were 
led  to  follow  the  interesting,  if  somewhat  radical  example  of 
their  sister  Commonwealth.  Prohibitory  liquor  laws,  either 
with  or  without  the  referendum  feature,  were  passed  in  con- 
siderable number  and  variety.  The  legislature  of  Vermont 
in  1852  enacted  a  measure  of  this  kind,  which  was  to  go 
into  effect  in  March  1853.  In  the  meantime,  however,  a  vote 
of  the  people  of  the  State  was  to  be  taken  as  to  "  their  judg- 

8  Laws  of  Maine,   1867,  ch.   133. 


ON  STATUTES  OF  GENERAL  OPERATION    203 

ment  and  choice  in  regard  to  this  act  "  and  "  if  a  majority  of 
the  ballots  shall  be  '  no  '  "  then  it  was  not  to  become  effective 
until  December  1853  (instead  of  in  March).*  Here,  again, 
there  was  no  direct  submission  of  the  law  to  the  people. 
They  were  technically  to  determine  only  one  point,  the  time  at 
which  the  act  should  come  into  force,  though  it  was  under- 
stood that  if  they  voted  "  no  "  the  legislature  which  would  be 
in  session  again  before  December,  would  repeal  the  law,  so 
that  it  would  be  entirely  nugatory.  In  effect  it  was  a  sub- 
mission of  the  question  whether  the  act  should  be  a  law  for 
and  during  the  time  intervening  from  March  to  December 
1853,  which  is  hardly  distinguishable  from  the  case  of  the 
open  reference  of  the  whole  subject  to  the  electoral  body. 
The  vote  was  in  the  affirmative,  and  the  law  took  effect  on 
the  first  named  of  the  alternate  dates.5 

A  somewhat  similar  device  was  employed  by  the  Michigan 
legislature  in  1853.  .  This  legislature  approached  the  great 
constitutional  question,  however,  with  all  the  sail  out- 
spread. Its  law  was  an  act  "  prohibiting  the  manufacture  of 
intoxicating  beverages  and  the  traffic  therein  ".  The  legis- 
lature distinctly  declared  that  "  this  act  shall  be  submitted 
to  the  electors  of  this  State  for  their  approval  or  disapproval  " 
at  a  special  election  to  be  held  in  June  1853.  However,  it 
was  added  that  "  if  it  shall  appear  that  a  majority  of  the  votes 
[ballots]  cast  have  thereon  '  adoption  of  the  law  prohibiting 
the  manufacture  of  intoxicating  beverages  and  the  traffic 
therein,  yes ',  this  act  shall  become  a  law  of  the  State  from 
and  after  the  first  day  of  December  1853 ;  but  if  a  majority 
of  the  votes  cast  upon  the  question  have  thereon  '  adoption 
of  the  law,  etc.  no  ',  this  act  shall  take  effect  and  become  a 
law  of  the  State  from  and  after  the  first  day  of  March 
1870  ".8  Here  was  another  odd  subterfuge;  the  law  was  a 
positive  law  to  take  effect  anyhow,  no  matter  whether  the 
people  voted  yes  or  no  upon  it,  but  in  the  one  case  it  should 

4  Laws  of  Vermont,    1852,   p.    19. 
BCf.   State  v.   Parker,   26  Vt.  p.   357. 
8  Laws  of  Michigan,  1853,  p.  100. 


204  THE  REFERENDUM  IN  AMERICA 

be  in  force  from  and  after  December  i,  1853,  and  in  the  other 
case,  not  until  March  i,  1870. 

The  referendum  was  attacked  by  a  kind  of  flank  movement, 
too,  in  Rhode  Island  in  1853,  when  it  was  again  a  question  of 
vitalizing  a  prohibitory  liquor  law.  In  the  Rhode  Island  act 
it  was  provided  that  "  the  legal  voters  in  the  several  towns  " 
of  the  State  at  the  annual  election  for  State  officers  in  April 
(the  law  was  passed  in  January)  should  vote  "  upon  the  ques- 
tion of  repealing  this  act  ".  "  In  the  event  of  a  majority  of 
such  ballots  being  cast  in  favor  of  the  repeal  of  this  act,  the 
same  shall  be  limited  in  its  operations  and  have  no  effect  after 
the  tenth  day  from  and  after  the  rising  of  the  General  As- 
sembly at  its  next  May  session."  1 

The  Iowa  legislature  in  1855,  was  much  more  straight- 
forward than  any  which  had  yet  submitted  this  question  to 
popular  vote.  It  declared  simply  and  plainly  that  at  an  elec- 
tion to  be  held  in  April  1855,  "  the  question  of  prohibiting 
the  sale  and  manufacture  of  intoxicating  liquors  shall  be  sub- 
mitted to  the  legal  voters  of  this  State  ".  The  ballots  should 
bear  the  words  "For  the  Prohibitory  Liquor  Law",  or 
"  Against  the  Prohibitory  Liquor  Law  ".  If  a  majority  of 
the  votes  cast  on  the  subject  were  for  the  adoption  of  the  act, 
it  was  to  take  effect  on  July  i,  1855,  otherwise  it  was  to  be 
null  and  void,  the  latter  however  only  by  implication.8 

The  "  Maine  Liquor  Law  "  was  the  subject  of  referenda 
in  several  other  states  of  the  Union  while  the  same  wave  of 
temperance  sentiment  was  sweeping  over  the  country.  Al- 
though it  has  lately  been  regarded  a  much  better  method  to 
incorporate  a  proposition  for  the  prohibition  of  the  liquor 
trade  in  a  constitutional  amendment,  which  reaches  the  people 
in  such  a  way  that  the  legality  of  the  submission  cannot  pos- 
sibly be  brought  into  question,  North  Carolina  furnishes  a 
rather  recent  instance  of  a  popular  vote  upon  a  statute.  In 
1 88 1  the  legislature  of  that  State  passed  a  prohibitory  law 
which  was  to  have  "  full  force  and  effect  "  on  and  after  Oc- 

7  Laws  of  Rhode  Island,   1853,  p.  232. 

8  Laws  of  Towa,   1855,  p.  58;   Santo  v.  State,  2  Iowa,   165. 


ON  STATUTES  OF  GENERAL  OPERATION    205 

tober  i,  1 88 1.  In  August,  1881,  however,  the  sense  of  the 
electors  was  to  be  taken  upon  the  question  of  prohibition.  If 
at  this  election  a  majority  of  the  votes  cast  were  "  against 
prohibition  ",  then  no  person  was  "  to  be  prosecuted  or  pun- 
ished for  any  violation  of  this  act  ".  Without  using  plain 
words,  this  was  nothing  less  than  a  positive  repeal  of  the  law, 
if  the  people  should  vote  against  it  in  the  referendum. 

It  is  difficult  to  draw  distinctions,  in  fact,  even  if  these 
should  be  possible  by  appeals  to  technicalities  of  language 
between  such  cases  of  law-making  by  popular  vote,  and  the 
actual  redelegation  of  power  by  the  legislature,  which  all 
students  of  our  law  and  institutions  declare  to  be  a  wholly 
invalid  proceeding. 

Another  referendum  for  which  no  specific  authority  had 
been  derived  from  the  constitution,  was  that  taken  many 
years  ago  in  California  on  the  question  of  selecting  a  "  per- 
manent seat  of  government "  for  that  State.  An  act  passed 
by  the  State  legislature  in  1850  authorized  an  election  upon 
this  subject.9  The  people  in  this  case,  however,  seem  to  have 
been  regarded  by  the  legislature  merely  as  an  advisory  body, 
whose  recommendations  were  not  binding  upon  it.  Cali- 
fornia's "permanent  seat  of  government"  was  twice  changed 
within  four  years  in  the  early  days  of  her  career  as  a  State, 
the  first  choice  having  been  Vallejo,  the  second  Benicia  and 
the  third  Sacramento,  the  present  capital. 

One  of  the  boldest  attempts  ever  made  to  introduce  the 
people  as  an  active  factor  in  law-making,  a  case  which  soon 
came  to  be  of  standard  authority  as  a  model  to  be  well 
avoided  in  the  future,  in  view  of  the  unfriendly  judicial  opin- 
ions it  immediately  evoked,  is  to  be  credited  to  New  York. 
The  legislature  of  that  State  in  March  1849,  passed  a  so- 
called  "  Free  School  Law  ".  The  public  system  of  gratuitous 
schools  had  just  begun  to  secure  a  foothold  in  this  country 
and  it  was  yet  a  question  with  the  legislature  whether  the 
people  ought  to  be  taxed  for  their  own  education.  This  law 

9  Laws  of  California,   1850,  p.  412. 


206  THE  REFERENDUM  IN  AMERICA 

provided  that  "  common  schools  "  should  be  free  to  all  per- 
sons between  five  and  twenty-one  years  of  age,  residing  in  the 
various  districts  into  which  the  State  was  divided  for  pur- 
poses of  school  administration.  The  law,  however,  was  a 
mere  bill  or  proposal,  since  the  electors  were  to  determine  by 
ballot  at  the  annual  election  to  be  held  in  November,  1849, 
"  whether  this  act  shall  or  not  become  a  law  ".  The  ballots 
cast  in  favor  of  the  adoption  of  the  act  were  to  contain  the 
words :  "  School — For  the  New  School  Law."  Those  cast 
against  its  adoption :  "  School — Against  the  New  School 
Law."  It  was  specified,  moreover,  that  the  ballots  should  be 
folded  so  as  to  conceal  all  the  words  except  the  word 
"  School  ",  and  "  in  case  a  majority  of  all  the  votes  in  the 
State  shall  be  cast  against  the  New  School  Law,  this  act  shall 
be  null  and  void  " ;  but  "  in  case  a  majority  of  all  the  votes  in 
the  State  shall  be  cast  for  the  New  School  Law,  then 
this  act  shall  become  a  law  and  shall  take  effect  imme- 
diately".10 

The  legislature  of  New  Hampshire  submitted  to  the  voters 
of  that  State  in  1880,  a  question  in  regard  to  minority  rep- 
resentation in  corporations,  a  matter  it  would  seem  of  little 
general  interest  to  the  public.  It  was  proposed  that  share- 
holders at  elections  for  directors  or  managers  of  corporations 
should  cast  "  the  whole  number  of  votes  for  one  candidate, 
or  distribute  them  upon  two  or  more  candidates,  as  he  may 
prefer  ".  The  law,  however,  must  be  referred  to  the  citizens 
of  the  State  and  be  approved  by  a  majority  of  the  electors 
voting  upon  it,  or  otherwise  it  should  be  "  of  no  ef- 
fect 'V1 

In  1883,  in  order  to  feel  how  the  popular  pulse  beat  as  to 
the  very  disagreeable  question  of  contract  labor  in  the  State 
prisons,  the  legislature  of  New  York  authorized  a  referendum 

10  Laws  of  New  York,   1849,  pp.   192,  561. 

11  Laws  of  New   Hampshire,    1879,  p.   365.     The  vote  upon  this   law 
was  22.560  for,  and  10.375  against,  a  total  of  32.935-     The  whole  vote 
of  the  State  for  President  in  1880  was  86,174.     Cf.  State  v.  Hayes,  61 
N.  H.,  264. 


ON  STATUTES  OF  GENERAL  OPERATION    207 

on  this  subject.  The  trades  unions  and  other  workmen's  or- 
ganizations complained  that  their  labor  was  being  brought 
into  competition  with  that  of  the  public  convicts.  This  vote 
was  wholly  advisory  to  guide  the  legislature  in  its  future 
course.  There  was  presented  no  law  which  the  people  were 
to  accept  or  reject.12  The  State  officers  were  asked  to  make 
a  record  of  the  number  of  votes  which  had  been  cast  for  and 
against  the  proposition,  and  to  publish  the  result  for  the  pub- 
lic information.  Of  a  somewhat  similar  nature,  though  in- 
tended for  the  guidance  of  the  Federal  rather  than  the  State 
government,  was  a  vote  of  the  people  of  Nevada,  in  1880, 
for  and  against  Chinese  immigration  into  the  United  States. 
The  sense  of  the  electors  being  made  known,  the  Governor 
was  to  memorialize  the  President  and  Congress  on  the  sub- 
ject, in  the  hope  that  the  referendum  would  exert  an  influence 
upon  national  legislation.13 

California  furnishes  some  cases  of  a  similar  kind. 
For  a  long  time  much  public  sentiment,  if  rather  indefinite  in 
strength,  has  existed  in  favor  of  the  election  of  United  States 
Senators  by  direct  vote  of  the  people  instead  of  by  the  legis- 
latures, as  is  the  method  at  the  present  time.  In  1892  the 
people  of  California  were  authorized  to  record  their  views 
on  this  point  for  the  information  of  the  President  and  Con- 
gress.14 In  the  same  year  the  California  legislature  asked 
for  popular  advice  on  a  question  of  State  policy,  the  electors 
being  invited  to  express  their  views  for  or  against  "an  educa- 
tional qualification  requiring  every  voter  to  be  able  to  write 
his  name  and  read  any  section  of  the  Constitution  in  the  Eng- 
lish language  ",15 

Likewise  in  Massachusetts,  in  1895,  the  legislature  asked 
"  all  persons  qualified  to  vote  for  school  committee  "  therefore 
both  men  and  women,  to  give  in  their  votes  at  the  next  State 
election,  "  yes  "  or  "  no  ",  in  answer  to  the  following  ques- 

19  Act  of  May  25,  1883. — Laws  of  New  York  for  that  year. 
18  Laws  of  Nevada,  1879,  p.  27. 
14  Laws  of  California,   1891,  p.  46. 
"Ibid.,  p.  115. 


208 


THE  REFERENDUM  IN  AMERICA 


tion :  "  Is  it  expedient  that  municipal  suffrage  be  granted  to 
women  ?  "  This  referendum  was  quite  unofficial,  being  with- 
out binding  force  upon  the  legislature,  which  submitted  no 
law  but  simply  requested  the  people  to  express  their  sense  on 
this  subject,  presumably  for  legislative  guidance  later  on.16 
The  legislature  in  1894,  had  asked  the  justices  of  the 
Supreme  Court  of  Massachusetts  for  their  opinion  as  to  the 
constitutionality  of  the  submission  of  such  a  law,  and  al- 
though there  was  some  difference  in  the  court,  a  majority  of 
the  judges  united  in  declaring  that  an  act  so  adopted  would 
be  invalid.  While  this  was  strictly  speaking,  not  an  of- 
ficial deliverance  being  intended  merely  for  the  legislature's 
information  and  advice,  it  is  an  admirable  review  of  an  im- 
portant constitutional  question.  The  opinion  deterred  the 
legislature  from  passing  a  conditional  act  on  this  subject, 
and  led  it  instead  to  adopt  the  simple  plan  of  taking  the  sense 
of  the  people  on  a  proposition  disconnected  with  any  con- 
crete law.  There  is  nothing,  it  would  seem,  that  could  pre- 
vent the  legislature  from  resolving  to  ask  the  people  for  ad- 
vice. It  is  perhaps,  as  constitutional  for  it  to  do  this,  as  to 
ask  the  Supreme  Court  or  an  executive  officer  of  the  govern- 
ment, or  any  other  department,  court  or  body,  for  an  opinion 
regarding  any  subject  about  which  they  may  be  presumed  to 
have  useful  information.17 

That  there  is  not  a  greater  number  of  instances  in  which 
the  legislatures  have  submitted  general  State  laws  to  a  vote 
of  the  people,  and  that  in  those  cases  at  hand,  they  have  gone 
about  the  work  in  so  roundabout  a  way,  is  due  to  the  hostility 
which  was  early  encountered  in  the  State  courts.  As  to  the 
constitutionality  or  unconstitutionally  of  law-making 
by  popular  vote  in  and  for  the  States,  always  excepting 
laws  for  counties,  cities  and  local  districts,  there  is 
to-day  little  difference  of  opinion.  The  general  prin- 

19  Supplement  to  the  Public  Statutes  of  Massachusetts,  1889-1895, 
Boston,  1897,  p.  1389. 

lTFor  this  opinion  of  the  Massachusetts  Justices,  see  160  Mass.,  Sup- 
plement, pp.  586  et  seq. 


ON  STATUTES  OF  GENERAL  OPERATION    209 

ciple  that  a  body  acting  under  delegated  authority  can- 
not redelegate  its  powers  to  some  other  person  or  body, 
is  a  well-settled  point  in  American  law.  Delegata  potestas 
non  potest  delegari  is  a  rule  the  virtue  of  which  no  one  dis- 
putes. "  Where  the  sovereign  power  of  the  State  has  located 
the  authority  there  it  must  remain,"  says  Judge  Cooley, 
"  and  by  the  constitutional  agency  alone,  the  laws  must  be 
made  until  the  constitution  itself  is  changed.  The  power  to 
whose  judgment,  wisdom  and  patriotism  this  high  preroga- 
tive has  been  entrusted,  cannot  relieve  itself  of  the  responsi- 
bility by  choosing  other  agencies  upon  which  the  power  shall 
be  devolved,  nor  can  it  substitute  the  judgment,  wisdom  and 
patriotism  of  any  other  body  for  those  to  which  alone  the 
people  have  seen  fit  to  confide  this  sovereign  trust."  18  The 
American  courts  have  again  and  again  reiterated  this  prin- 
ciple, and  even  where  they  have  admitted  that  there  might  be 
exceptions  to  the  general  rule,  as  in  the  case  of  local  com- 
munities, the  truth  of  the  fundamental  doctrine  has  never 
been  seriously  questioned  by  any  one.19 

18  Cooley,   Constitutional  Limitations,  p.   137 ;  cf.  also  the  opinion  of 
the  Justices  of  the  Supreme  Court  of  Massachusetts,  160  Mass.,  Supple- 
ment. 

19  The  first  important  case  bearing  upon  this  subject  in  any  State  came 
to  a  decision  of  the  Supreme  Court  of  Delaware  in  1847,  Rice  v.  Foster, 
4  Harr.  479,  on  a  local  option  liquor  law,  which  was  declared  to  be  un- 
constitutional.    Other  leading  cases  are  the  following:   Parker  v.  Com- 
monwealth, 6  Barr  (Penn.)  507  ;  Barto  v.  Himrod,  4  Seld.  (N.  Y.)  483  ; 
Thome  v.  Cramer,  15  Barb.  (N.  Y.)   112;  C.  W.  &  Z.  R.  R.  Co.  v.  Clin- 
ton County,  i  O.  S.  77  ;  Boyd  v.  Bryant,  35  Ark.  69  ;  Upham  v.  Super- 
visors of  Sutter  County,  8  Cal.  379  ;  Ex-Parte  Wall,  48  Cal.  279  ;  State 
?'.  Wilcox,  42  Conn.  364 ;  Maize  v.  The  State,  4  Ind.  342  ;  Santo  v.  State, 
2  Iowa,  165  ;  Geebrick  v.  State,  5  Iowa,  491  ;  State  v.  Weir,  33  Iowa,  134 ; 
Commonwealth  v.  Weller,   14   Bush.    (Ky.)    218;   Fell  v.   State,   42   Md. 
71  ;   People  v.   Collins,   3   Mich.   343  ;   Alcorn  v.   Hamer,   38   Miss.   652 ; 
State  v.  Hayes,  61   N.  H.  264 ;   City  of  Paterson  v.  Society  for  Estab- 
lishing Useful  Manufactures.  4  Zab.  (N.  J.)  385  ;  Morgan  v.  Monmouth 
Plank  Road  Co.,  2  Dutch.  (N.  J.)  99  ;  Bank  of  Chenango  v.  Brown,  26 
N.  Y.  467;  Gordon  v.  State,  46  O.  S.  607;  State  v.  Swisher,   17  Texas, 
441.     These  cases  are  arranged  chronologically  and  by  States  in  «"~ber- 
holtzer,    The   Referendum   in   America,    1893,    and   may   there   be    Con- 
veniently referred  to. 


210  THE  REFERENDUM  IN  AMERICA 

In  six  States  only  have  the  higher  courts  given  in  their 
opinions  on  the  direct  question  of  the  validity  of  law-making 
by  popular  vote,  in  respect  of  measures  which  apply  to  the 
whole  State.  First  and  foremost  is  the  opinion  called  out  by 
the  New  York  Free  School  Law  of  1849,  which  was,  as  has 
been  observed  already,  a  mere  pro  jet  de  loi,  since  the  elec- 
tors were  to  "  determine  by  ballot  at  an  election  to  be  held 
in  November  next  whether  this  act  shall  or  not  become 
a  law  ".  The  constitutionality  of  the  law  was  made  the  text 
of  opinions  by  the  Supreme  Court  in  three  separate  judicial 
districts  before  it  reached  the  Court  of  Appeals.20  In  two  of 
these  districts,  all  the  judges  concurring  and  with  full 
benches,  the  law  was  declared  to  be  unconstitutional,  and  of  ru 
effect  since  it  was  only  the  draft  of  an  act  referred  by  a  body, 
whose  constitutional  function  it  was  to  pass  it  definitivel] 
itself,  to  another  body  which  was  unknown  to  the  constitutk 
as  a  law-giver.  In  the  other  district  where  a  different  con- 
clusion was  arrived  at,  there  was  not  a  full  bench,  and  thei 
was  a  dissenting  opinion.21  The  New  York  Court  of  Appeals 
to  which  the  law  came  in  1853,  delivered  a  notable  opinion  22 
on  this  subject,  establishing  a  line  of  argument  which  has  be- 
come classic  in  the  theory  and  practice  of  the  United  States. 
Chief  Justice  Ruggles  in  the  majority  opinion  said : 

"  The  exercise  of  this  power  by  the  people  is  not  expressl] 
and  in  terms  prohibited  by  the  Constitution ;  but  it  is  forbid- 
den by  necessary  and  unavoidable  implication.     The  senate 
and  assembly  are  the  only  bodies  of  men  clothed  with  th< 
power  of  general  legislation.    They  possess  the  entire  power. 
The  people  reserved  no  part  of  it  to  themselves  excepting 
in  regard  to  laws  creating  public  debt,  and  can  therefore  exer- 
cise it  in  no  other  case.  *  *  *  The  legislature  had  no  powc 
to  make  such  submission,  nor  had  the  people  the  power  t< 

20  In  the  seventh  district,  Johnson  v.  Rich,  9  Barb.  680  ;  in  the  seconc 
district  Thorne  v.  Cramer,  15  Barb.  112,  and  in  the  fifth  district  Brad- 
ley v.  Baxter,   15  Barb.   122. 

21  Johnson  v.  Rich,  9  Barb.  680. 
22Barto  v.  Himrod,  4  Seld.  ((N.  Y.)  483. 


ON  STATUTES  OF  GENERAL  OPERATION    211 

bind  each  other  by  acting  upon  it.  They  voluntarily  sur- 
rendered that  power  when  they  adopted  the  Constitution. 
The  government  of  the  State  is  democratic;  but  it  is  a  rep- 
resentative democracy,  and  in  passing  general  laws  the 
people  act  only  through  their  representatives  in  the  legisla- 
ture." 

The  theory  was  early  developed  that  a  representative  law- 
making  body  could  pass  a  law  whose  going  into  effect  was 
made  conditional  upon  the  happening  of  a  future  contingent 
event,  which  might  perhaps  be  the  vote  of  a  majority  of  the 
electors  in  its  favor.  Such  legislation  was  pointed  to  both 
in  the  Federal  and  State  practice,  and  it  has  since  become 
quite  common,  especially  with  respect  to  municipalities  and 
local  communities  in  which  connection  it  will  receive  fuller 
consideration  in  another  part  of  this  work.     It  is  not  ques- 
tioned that  a  legislature  may  pass  laws  for  local  districts 
whose  going  into  effect  depends  upon  a  contingency,  which 
contingency  is  frequently  a  majority  vote  of  the  people  in 
favor  of  the  act.     This  theory  was  developed  in  Massachu- 
setts as  early  as  in  i826.23    But  the  question  here  is  this, — 
can  the  referendum  on  laws  covering  the  entire  State  seek 
and  find  the  same  defense?     There  is  no  support  for  this 
view  in  Barto  v.  Himrod,  for  in  this  opinion  the  New  York 
Court  of  Appeals  said :  "  The  event  on  which  the  act  was  made 
to  take  effect  was  nothing  else  than  the  vote  of  the  people  on 
the  identical  question  which  the  Constitution  makes  it  the  duty 
of  the  legislature  itself  to  decide.    The  legislature  has  no 
i  power  to  make  a  statute  dependent  on  such  a  contingency, 
because  it  would  be  confiding  to  others  that  legislative  discre- 
tion which  they  are  bound  to  exercise  themselves,  and  which 
they  cannot  delegate  or  commit  to  any  other  man  or  men 
to  be  exercised.    They  have  no  more  authority  to  refer  such 
a  question  to  the  whole  people  than  to  an  individual.     The 
people  are  sovereign,  but  their  sovereignty  must  be  exercised 
in  the  mode  which  they  have  pointed  out  in  the  Constitution." 

23  Wales  v.  Belcher,  3  Pick.  508. 


212  THE  REFERENDUM  IN  AMERICA 

Justice  Willard  in  a  separate  opinion  on  the  same  case,  in 
concluding  his  argument,  forcibly  said :  "  If  this  mode  of  leg- 
islation is  permitted,  and  becomes  general,  it  will  soon  bring 
to  a  close  the  whole  system  of  representative  government 
which  has  been  so  justly  our  pride.  The  legislature  will  be- 
come an  irresponsible  cabal,  too  timid  to  assume  the  responsi- 
bility of  law-givers,  and  with  just  wisdom  enough  to  devise 
subtile  schemes  of  imposture  to  mislead  the  people.  All  the 
checks  against  improvident  legislation  will  be  swept  away, 
and  the  character  of  the  Constitution  will  be  radically 
changed." 

In  Iowa,  in  respect  of  the  prohibitory  law  which  was  sul 
mitted  to  the  people  in  1855,  tne  court  took  up  a  similar  p( 
tion.  The  highest  judicial  tribunal  of  that  State  in  its  opii 
ion  respecting  this  act  said :  "  The  General  Assembly  cann( 
legally  submit  to  the  people  the  proposition  whether  an 
should  become  a  law  or  not;  and  the  people  have  no  powe 
in  their  primary  or  individual  capacity  to.  make  laws.  The 
do  this  by  representatives.  There  is  no  doubt  of  the 
thority  of  the  legislature  to  pass  an  act  to  take  effect  uj 
a  contingency.  But  what  is  a  contingency  in  this  sense  ai 
connection?  It  is  some  event  independent  of  the  will  of  tl 
law-making  power  as  exercised  in  making  the  law  or  s( 
event  over  which  the  legislature  has  no  control.  *  * 
The  will  of  the  lawmaker  is  not  a  contingency  in  relation 
himself.  *  *  *  After  a  bill  has  passed  the  two  hous< 
and  received  the  approval  of  the  Governor,  and  thus  becorm 
a  law  by  the  constitution,  how  could  a  vote  of  the  peoj 
affect  it?  As  well  might  this  court  submit  the  decision 
these  causes  to  a  vote  of  the  people  of  the  State,  or  of  a  ju( 
cial  district,  or  the  Governor  his  pardoning  power.'' 24 

24  Santo  v.  State,  2  Iowa,  165.    It  is  interesting  to  note  in  this  conn( 
tion  that  the  court,  although  declaring  the  referendum  which  was  pi 
vided  for  in  the  law,  to  have  been  unconstitutional,  upheld  the  constit 
tionality  of  the  law  itself.     The  judges  said  it  was  a  complete  law, 
having  been  regularly  passed  by  the  legislature,  and  signed  by  the 
ernor,  they  could  regard  as   invalid  only  that  part  of  it  providing  for 
a  vote  of  the  people.     The  question  was  not  referred  to  popular  vote  as 


ON  STATUTES  OF  GENERAL  OPERATION    213 

The  singular  method  of  securing  a  vote  of  the  people  on 
the  prohibitory  liquor  law  of  Rhode  Island,  namely  by  a  refer- 
endum to  decide  whether  or  not  an  act  which  was  complete 
when  it  came  from  the  hands  of  the  legislature  should  be  re- 
pealed, also  led  to  a  judicial  opinion.  The  court  here  said  that 
the  Constitution  of  the  State  had  vested  "  in  the  General  As- 
sembly alone  composed  of  the  two  houses,  the  power  of  enact- 
ing laws  ",  and  the  Assembly  could  not  "  call  to  their  aid  any 
other  body  making  the  existence  of  a  law  depend  in  whole  or 
in  part  upon  the  will  of  such  other  body."  They  held,  how- 
ever, that  this  law  could  not  be  objected  to  on  such  a  ground 
for  the  vote  was  not  for  or  against  the  enactment,  but  for 
or  against  the  repeal  of  the  law,  and  the  referendum  was  to 
have  no  effect  unless  it  should  be  favorable  to  repeal.  The 
citizens  voted  against  the  repeal  of  the  act,  and  the  court  were 
of  opinion  therefore  that  they  were  not  called  upon  to  take 
a  hand  in  the  matter,  though  the  inference  was  plain  that  an 
adverse  decision  could  have  been  expected  in  any  other 
case.25 

In  Michigan  on  the  question  of  the  constitutionality  of 
the  referendum  upon  a  prohibitory  liquor  law,  to  determine 
whether  the  act  should  take  effect  in  1853,  or  not  until  1870, 
the  court  was  equally  divided.  All  the  judges  concurred  in 
the  proposition  that  the  power  of  enacting  general  State  laws 
could  not  be  delegated  by  the  representative  body,  even  to 
the  people  themselves.  One  opinion,  however,  went  out  from 
the  view  that  the  favorable  vote  of  the  people  could  be  the 
happening  of  a  future  event  which  was  a  contingency  such  as 
might  rightly  be  named  by  the  legislature.  The  act  was  com- 
plete1 when  it  left  the  hands  of  the  legislature.  The  people 
were  simply  to  decide  when  it  should  go  into  effect.  It  was 
a  positive  law  in  any  case,  for  the  only  question  to  be  de- 
termined was  whether  it  should  come  into  force  on  December 

in  the  case  of  the  New  York  Free  School  Law  "  whether  this  act  shall 
or  not  become  a  law  ",  in  which  event  the  Iowa  court  lead  us  to  infer 
that  they  would  have  held  the  whole  act  to  be  unconstitutional. 
K  Brown  v.  Copeland,  3  R.  I.  33. 


214  THE  REFERENDUM  IN  AMERICA 

i,  1853,  or  March  I,  1870.  The  other  opinion  was  a  vigorous 
denial  that  the  vote  of  the  people  which  was  required  by  the 
law  could  be  regarded  as  a  contingency  in  any  proper  sense. 
Laws  to  take  effect  upon  the  happening  of  a  future  event 
must  be  complete  and  positive  in  themselves,  when  they 
passed  from  the  hands  of  the  legislature.  It  was  not  per- 
missible that  they  should  become  laws  at  the  will  of  some 
"  foreign  or  extraneous  power  ",  which  has  been  asked  to 
determine  as  regards  the  expediency  of  the  law  itself.  Such 
a  determination  as  to  the  expediency  of  the  legislature's 
course,  the  judges  in  their  opinion  said,  had  here  been 
contemplated,  and  the  act  therefore,  must  be  held  to  be  un- 
constitutional. "  This  act  of  the  legislature,"  the  leading 
opinion  adverse  to  the  law  continued,  was  "  a  most  flagrant 
violation  of  the  Constitution,  and  of  our  representative  sys 
tern  of  government  "  in  whose  stead  now  it  was  proposed 
that  "  a  collective  democracy,  the  most  uncertain  and  danger- 
ous of  all  governments "  should  be  "  arbitrarily  substitu- 
ted ",26 

In  Vermont's  prohibitory  liquor  law  of  1852,  like  Michi- 
gan's, the  point  submitted  to  the  people  was  the  date  upon 
which  the  law  should  become  operative.   The  Supreme  Coui 
declared  in  this  case  that  the  form  of  the  lawT  was  such  that 
its  coming  into  force  did  not  depend  upon  the  vote  of  the 
people.     An  adverse  vote  could  have  only   suspended   th< 
operation  of  the  law  for  a  few  months.    It  was  a  positive  act 
with  or  without  the  referendum.    This  court,  however,  went 
much  farther  than  any  of  the  other  tribunals.   They  declared 
that  a  favorable  vote  of  the  people  was  a  good  and  sufficient 
contingency  for  the  going  into  effect  of  general  State  laws 
as  well  as  laws  affecting  local  districts.    No  distinction  was 
drawn  between  laws  for  the  whole  State  and  laws  for  the 
localities.    There  had  been  such  legislation  in  free  states,  th< 
court  said,  for  hundreds  of  years,  and  as  for  its  being  void  an< 
irregular,  the  opinion  continued,  it  was  a  singular  fact  that 

88  People  v.  Collins,  3  Mich.  343. 


ON  STATUTES  OF  GENERAL  OPERATION        215 

"  the  remarkable  discovery  should  first  be  made  in  the  free 
representative  democracies  of  America  *  *  *  where  the 
legislators  are  confessedly  the  mere  agents  and  instruments 
of  the  people,  to  express  their  sovereign  and  superior  will  to 
save  the  necessity  of  assembling  the  people  in  mass  ",  etc.27 
This  very  democratic  opinion  is  probably  without  its  counter- 
part among  all  the  decisions  in  the  American  courts  on  the 
subject  of  the  referendum.  In  its  disregard  of  the  legal  bar- 
riers which  the  "  Fathers  "  established  in  this  country  to 
save  the  people  from  the  rule  of  the  crowd,  it  must  be  held  to 
rank  as  a  very  unusual  state  paper  and  one  laden  with  very 
dangerous  sentiments. 

A  recent  judicial  opinion  in  reference  to  conditional  legis- 
lation of  this  kind,  was  delivered  in  New  Hampshire  in  1881, 
the  law  of  1879  allowing  minority  representation  in  the  boards 
of  directors  of  corporations  having  come  to  the  court  for  re- 
view. Here  the  judges  drew  a  very  plain  distinction  between 
the  State  and  the  localities.  All  our  experience,  and  con- 
siderations of  policy  as  well,  tend  to  vindicate  the  theory  that 
the  contingency  of  a  favorable  vote  of  the  people  may  be 
the  occasion  of  the  taking  effect  of  a  law  which  the  State 
legislature  has  passed  to  apply  to  a  county,  town  or  other 
local  district.  "  In  the  organization  of  State  government," 
however,  said  the  court  in  the  New  Hampshire  opinion,  "  for 
reasons  by  them  deemed  sufficient,  the  people  vested  the  su- 
preme legislative  power  not  in  themselves,  but  in  certain 
agents  as  a  personal  trust.  *  *  *  They  were  of  opinion 
that  while  there  might  be  good  reason  for  granting  to  mu- 
nicipalities a  limited  power  of  making  local  law,  it  was  not 
wise  to  attempt  to  carry  on  the  work  of  State  legislation  in 
town  meeting.  They  might  have  made  an  effort  to  overcome 
one  of  the  difficulties  of  that  method  by  authorizing  a  State 
committee  to  propose  laws,  and  requiring  the  Governor  to  as- 
certain and  proclaim  the  result  of  the  popular  vote  in  the 
manner  adopted  by  the  act  of  1879  They  preferred  and  they 

"  State  v.   Parker,   26   Vt.   357. 


216  THE  REFERENDUM  IN  AMERICA 

established  a  representative  republic;  and  they  did  not  con- 
fer upon  the  legislature  the  power  of  abolishing  it,  repeal- 
ing the  second  article  of  the  Constitution  and  changing  the 
supreme  law-making  body  into  a  committee  on  proposals. 
That  power  the  legislature  would  have  if  they  could  transfer 
from  themselves  to  others  the  responsibility  of  passing  or  re- 
fusing to  pass  a  law  of  a  non-local  character.  If  the  power 
of  general  legislation  could  be  conveyed  by  the  act  of  1879, 
to  those  who  might  be  induced  to  exercise  it  in  town  meeting, 
all  laws  could  be  made  and  repealed  in  the  same  way,  and  the 
representative  character  of  the  government  could  easily  be 
extinguished."  28 

Thus  in  but  one  State,  Vermont,  do  we  find  a  higher  court 
that  has  made  a  declaration  in  favor  of  the  system  of  sub- 
mitting general  State  laws  to  popular  vote,  when  the  legis- 
lature is  unable  to  point  to  a  clause  in  the  constitution  which 
specifically  authorizes  the  submission.  In  Michigan  the 
court  was  equally  divided  on  the  point.  The  other  decisions 
are  against  the  proceeding.  In  both  Vermont  and  Michigan, 
the  issue  was  not  quite  direct,  because  of  the  technicalities 
which  the  legislatures  had  purposely  raised  to  avoid  such  a 
result  as  that  one  earlier  recorded  in  New  York,  in  reference 
to  the  Free  School  Law.  The  people  were  to  determine,  not 
whether  the  bill  should  become  a  law,  but  the  mere  point  of 
time  when  it  should  become  effective.  The  law  when  it  left 
the  legislature,  was  a  positive  law  in  any  case;  the  people 
were  to  decide  but  this  single  question:  whether  it  should 
come  into  force  at  once,  or  at  some  future  time,  as  for  in- 
stance, nearly  twenty  years  hence,  which  was  the  alternate 
date  in  Michigan. 

Nevertheless  these  decisions  seem  to  have  availed  the  ref- 
erendum very  little  either  in  Vermont  or  Michigan.  Justice 
Pratt,  in  his  opinion  against  the  constitutionality  of  the 
Michigan  law  in  1854,  alluding  to  the  unfortunate  division  in 
the  court,  and  filled  with  alarm  for  the  future,  said :  "  This 

28  State  v.  Hayes,  61  N.  H.  264. 


ON  STATUTES  OF  GENERAL  OPERATION        21? 

>vereign  law  of  our  constitutional  system  of  government 
the  Constitution]   says  that  the  legislature  shall  make  the 
iws  for  the  State;  that  this  and  this  only  is  its  legitimate 
isiness  as  a  distinct  branch  of  the  government.     But  the 
lembers  of  this  constitutional  body  meet  and  say  we  will 
lot  be  governed   by  the  expressed   will  of  the   sovereign. 
*     *     A  majority  of  the  electors  sanction  such  an  unau- 
lorized  proceeding.     *     *     *     The  question  is  taken  to  the 
>urt  of  last  resort,  whose  duty  it  is  under  the  Constitution, 
determine  the  question,  but  the  members  of  that  court  are 
mable  to  agree,  being  equally  divided,  so  that  no  affirmative 
lecision  upon  it  can  now  be  made.    In  view  of  such  a  state  of 
lings,  what  is  to  be  the  final  result  and  end  of  this  kind  of 
legislation?     Our  boasted  system  of  representative  govern- 
icnt   is   to  be   perverted,   and   a   collective   democracy   the 
lost  uncertain  and  dangerous  of  all  governments  to  be  arbi- 
irily  substituted  in  its  stead."  29     Even  in  Vermont  where 
ic  court  was  so  well  convinced  that  the  people  could  be  in- 
:roduced  into  the  system  at  the  legislature's  will  to  accept  or 
reject  State  laws,  the  referendum  has  not  enjoyed  any  marked 
levelopment. 

The  unconstitutionality  of  laws  of  this  character  is  a  general 
)rinciple  so  firmly  established  throughout  the  Union  to-day, 
iat  the  legislature  prefers  not  to  run  the  risk  of  submitting 
ts  acts  to  popular  vote.  In  the  case  of  prohibitory  liquor 
laws,  and  other  legislative  questions  of  a  vexatious  char- 
acter, it  is  a  much  more  feasible  plan,  as  I  have  noted  on 
earlier  pages,  to  embody  the  proposal  in  an  amendment  to 
the  State  constitution.  With  the  liberalization  of  our  ideas 
in  regard  to  constitutional  law,  and  the  simplification  of  the 
process  by  which  amendments  may  be  submitted  to  popular 
vote,  there  is  little  reason  now  why  the  legislature  should 
pursue  a  course  that  may  bring  down  upon  itself  the  charge 
of  having  misunderstood  and  violated  the  charter  from  which 
it  derives  its  whole  authority. 

"People  v.  Collins,   3   Mich.  368. 


CHAPTER  IX 

THE  LOCAL  REFERENDUM — BILLS  AFFECTING  THE  SCOPE  AND 
FORM  OF  THE  LOCAL  GOVERNMENTS 

IT  is  in  the  counties,  cities,  towns  and  the  other  local  dis- 
tricts of  the  States,  by  whatever  name  they  may  be  designated, 
that  the  referendum  has  reached  the  fullest  measure  of  its 
development  in  America.  In  no  other  field  is  it  so  laborious 
for  the  student  to  assemble  the  facts,  since  the  laws  govern- 
ing the  localities  make  very  large  volumes  in  every  State,  and 
they  are  being  changed  at  each  legislative  session.  Rules 
of  a  general  character  are  observed  in  each  State,  however, 
in  the  enactment  of  such  legislation,  and  all  the  Constitu- 
tions have  more  or  less  to  say  for  the  guidance  of  the  legis- 
latures. Indeed,  in  many  States,  and  it  is  a  tendency  which 
has  become  firmly  established  in  our  practice,  special  legis- 
lation in  regard  to  localities  is  being  prohibited  altogether, 
or  the  privilege  of  passing  "  special  laws  "  is  at  any  rate 
being  very  much  curtailed.  This  again  is  an  important  re- 
striction upon  the  powers  of  the  legislature,  which,  as  we  have 
seen,  has  been  losing  on  so  many  sides,  and  fewer  legislative 
sessions,  shorter  sessions  and  smaller  volumes  of  laws  are  the 
most  natural  and  not  unwelcome  result.  The  great  numbers 
of  private  acts  which  earlier  burdened  the  statute  books,  and 
which  had  reference  to  separate  municipalities, — cities,  coun- 
ties, towns,  townships,  etc., — meant  to  serve  a  purpose  in 
single  emergencies,  have  been  superseded  by  "  general  laws  " 
in  most  of  the  States.  It  is  true  that  there  are  some  important 
Commonwealths  in  which  "  special  laws  "  are  still  permitted 
by  the  Constitution,  but  the  evils  which  have  crept  into  the 
legislative  halls  through  this  system,  especially  with  the 
growth  and  development  of  great  cities,  have  become  so  of- 

218 


ON  BILLS  AFFECTING  LOCAL  GOVERNMENT     219 

fensive  that  the  tendency  against  such  legislation  is  very 
marked,  even  where  it  is  not  made  entirely  impossible  by  a 
constitutional  prohibition.  The  lobbying,  log-rolling,  "  jam- 
ming "  and  other  abuses  of  even  a  worse  character  have  come 
up  in  the  train  of  the  "  special  law  ",  and  this  kind  of  legisla- 
tion has  been  made  a  mark  therefore  for  the  conventions 
which  in  many  ways  in  recent  years  have  done  so  much  to 
give  new  form  to  the  State  governments. 

The  "  general  law  "  is  a  law.  which  is  passed  by  the  legis- 
lature to  apply  to  all  the  cities,  counties  or  other  local  dis- 
tricts of  the  State,  or  to  certain  classes  or  groups  of  cities, 
counties  or  districts.  By  this  means  it  becomes  very  much 
more  difficult  for  the  legislature  to  pass  a  law  for  a  single 
city  or  other  locality,  and  it  would  be  impossible  for  it  to  do 
so  were  it  always  acting  in  good  faith,  obedient  to  the  spirit 
as  well  as  the  letter  of  the  constitution.  Some  of  the  devices 
which  are  employed  to  evade  this  constitutional  restriction 
are  very  clever,  and  at  the  same  time  very  amusing.  It  is 
usual  for  the  legislatures  when  they  pass  their  general  laws, 
to  divide  the  counties  and  cities  into  a  number  of  "  classes  ". 
This  course  seems  to  be  quite  essential,  especially  in  the  case 
of  cities,  since  these  unwieldy  giants  which  have  come  up  to 
confuse  and  make  more  difficult  the  problems  of  State  ad- 
ministration often  have  enormous  populations.  A  very  large 
percentage  of  the  whole  population  of  a  State  may  be  urban, 
and  in  all  likelihood  one  or  two  cities  will  have  got  such  a 
start  over  rivals  in  the  State,  that  they  will  contain  as  many  as 
a  third  or  fourth  part  of  the  inhabitants  of  the  whole  Com- 
monwealth. A  city  of  1,000,000  inhabitants  cannot  be  gov- 
erned by  the  same  organic  law  as  a  city  of  100,000,  and  the 
latter  will  have  needs  differing  in  a  material  way  from  those 
of  a  municipality  which  has  a  population  of  only  10,000.  The 
State  legislature  therefore  creates  "  classes  ",  and  it  not  in- 
frequently happens  that  there  is  but  a  single  city  in  a  class. 
For  instance,  in  Pennsylvania,  cities,  for  purposes  of  govern- 
ment, are  divided  into  three  classes :  the  first  made  up  of 
cities  containing  a  population  of  600,000  or  more,  the  second, 


220  THE  REFERENDUM  IN  AMERICA 

of  cities  below  600,000,  but  not  less  than  100,000  inhab- 
itants, the  third,  of  cities  having  less  than  100,000  inhabitants. 
Now  it  so  happens  that  Philadelphia  is  the  only  city  in  the 
State  of  the  first  class,  and  until  a  rather  recent  time  Pitts- 
burg  was  the  only  city  of  the  second  class,  so  that  while  os- 
tensibly engaged  in  passing  a  general  law,  the  legislature 
though  not  naming  them,  could  unrestrainedly  legislate  for 
Philadelphia  and  Pittsburg,  through  laws  applying  to  "  all 
cities  of  the  first  class  ",  and  "  all  cities  of  the  second  class  "-1 
This  arrangement  of  classes  has  been  held  to  be  within  the 
meaning  and  intent  of  the  Constitution  by  the  highest  court 
in  the  State.2  Acts  dividing  the  cities  of  the  State  into  five 
and  seven  classes  respectively  were,  however,  declared  to 
be  unconstitutional,  in  that  it  was  carrying  the  classification 
too  far,  thus  recognizing  a  "  vicious  principle  "  which  ought 
to  be  "  unhesitatingly  condemned  ".3 

This  "  vicious  principle  ",  however,  has  not  always  been 
"  condemned  "  in  other  States.  The  number  of  classes  has 
by  no  means  been  confined  to  three,  even  where  the  consti- 
tutional restraints  seem  quite  as  rigid  as  in  Pennsylvania,  and 
the  intent  to  evade  the  constitutional  limitation  on  the  part 
of  the  legislature  quite  as  deserving  of  the  courts'  disappro- 
bation. For  instance,  Missouri  recognizes  four  classes  of 
cities,  California  six,  and  Ohio  no  less  than  seven,  and  below 
these  villages  and  hamlets.4  In  California  the  counties  of  the 
State  are  divided  by  the  legislature  into  no  less  than  fifty- 
three  classes.5  There  are  only  fifty-seven  counties  in  the  en- 
tire State.  More  than  one  county  could  scarcely  find  mem- 
bership in  the  46th  class,  for  instance,  which  includes  all 
counties  having  a  population  over  4,930,  and  under  4,980,  or 
in  the  33d  class  of  counties  having  a  population  in  excess  of 
10,030,  arid  less  than  10,070,  or  in  the  49th  class  containing 

1  Pepper  &  Lewis,  Digest  of  Pennsylvania  Laws,  Vol.  I,  p.   555. 

2  Wheeler  v.   Philadelphia,   77   Pa.  34. 
8  Ayars  Appeal,  122  Pa.  266. 

4  Giauque's  Revised  Statiites  of  Ohio,  7th  edition,  sec.  1546. 

B  Statutes  and  Amendments  to  the  Codes  of  California,  1893,  P-  384. 


ON  BILLS  AFFECTING  LOCAL  GOVERNMENT      221 

over  3,700  and  under  3,780  inhabitants.  In  Ohio  also  a  num- 
ber of  laws  pretending  to  be  general  have  been  passed,  in 
which  trivial  differences  of  population  furnish  the  basis  for 
the  classification,  as  for  example,  a  law  of  March  29,  1879, 
which  was  to  apply  to  all  counties  having  a  population  at  the 
Federal  census  next  preceding  the  passage  of  the  act,  of  not 
less  than  29,130,  nor  more  than  29,135;  and  another  of  May 
14,  1894,  containing  a  reference  to  all  counties  having  a 
population  of  not  less  than  31,940  nor  more  than  31,960,  and 
not  less  than  35,400  nor  more  than  35,500.  There  is  some- 
times even  greater  definiteness  in  the  act :  e.  g.,  a  direction  to 
the  commissioners  of  "  any  county  in  Ohio  containing  a  popu- 
lation by  the  last  census  of  49,974  ".6  Again  a  law  of  1895  in 
Tennessee  was  made  to  apply  to  counties  of  not  less  than 
30,000  nor  more  than  34,000  inhabitants,  to  those  of  a  popula- 
tion of  55>°°°  and  over,  and  to  such  adjoining  counties  as 
might  have  inhabitants  numbering  35,100  or  over.7  Such  in- 
genious attempts  to  enact  special  laws  despite  constitutional 
prohibitions  have  several  times  reached  the  courts,  and  have 
called  forth  unfavorable  opinions  from  the  judiciary.8 

Again  efforts  have  been  made  to  introduce  geographical 
distinctions  in  making  up  the  classes,  as  in  Pennsylvania, 
where  a  few  years  ago  a  law  was  passed  to  apply  to  "  all 
counties  in  this  Commonwealth  where  there  is  a  population  of 
more  than  60,000  inhabitants,  and  in  which  there  shall  be  any 
city  incorporated  at  the  time  of  the  passage  of  this  act  with  a 
population  exceeding  8,000  inhabitants,  situate  at  a  distance 
from  the  county  seat  of  more  than  twenty-seven  miles  by  the 
usually  travelled  public  road  ".9  This  covert  designation  of 
Crawford  County  and  the  city  of  Titusville,  the  Pennsylvania 
Supreme  Court  likewise  declared  to  be  an  unconstitutional 
device  and  the  judges  offered  the  interesting  opinion  that 

8  Giauque,  op.  cit.,  sec.  2107-7. 

7  Acts  of  Tennessee,   1895,  pp.  380-81. 

8  See  21   O.  S.,   i;  36  O.  S.,  481;   53  O.  S.,  94;  54  O.  S.,  470;  96 
Tenn.,  696. 

9  Act  of  Apr.  1 8,  1878,  Pennsylvania  Laws,  p.  29. 


222  THE  REFERENDUM  IN  AMERICA 

there  could  be  no  proper  classification  of  cities  or  counties, 
except  upon  the  basis  of  population.10 

In  addition  to  the  important  restriction  upon  the  power  of 
the  legislatures,  which  is  conveyed  in  this  prohibition  of 
special  legislation,  there  are  other  prohibitions  materially 
limiting  these  bodies  in  this  field  of  their  activity,  with  respect 
to  local  communities.  The  conventions,  in  their  desire  to 
safeguard  local  interests,  and  insure  local  governments 
against  too  much  legislative  interference  have  conferred  upon 
the  counties,  cities,  etc.,  a  considerable  amount  of  authority, 
which  they  are  to  exercise  directly  and  independently.  The 
agencies  of  local  government  within  the  State  therefore  act 
under  the  Constitution,  to  a  certain  degree  without  the  media- 
tion of  the  legislature.  They  can  point  to  the  Constitution 
as  the  charter  from  which  their  powers  are  directly  derived. 
In  those  respects,  therefore,  in  which  the  conventions  have 
laid  down  definite  rules  for  the  local  districts,  the  legislature 
can  act  only  in  a  supplementary  way.  It  can  still  legislate, 
if  not  forbidden  to  do  so,  but  only  in  filling  out  the  framework 
which  has  been  set  up  by  the  convention,  and  in  passing  laws 
which  are  necessary  to  a  proper  carrying  out  of  the  conven- 
tion's will. 

In  several  States  indeed  there  are  tendencies  at  work  to  free 
the  localities  almost  altogether  from  the  legislature's  au- 
thority, and  to  make  them  separate  and  self-governing,  to  a 
degree  never  before  suggested  or  contemplated.  In  four 
States  such  a  result  has  been  arrived  at,  with  respect  to  cities, 
in  that  they  may  frame  their  own  charters, — namely,  Mis- 
souri, California,  Washington  and  Minnesota.  They  are 
thus  created  almost  independent  Commonwealths  within  the 
Commonwealth,  so  to  speak,  subject,  of  course,  to  the  general 
supervision  of  the  State  in  administrative  and  judicial  matters. 
The  city  is  empowered  to  elect  its  own  "  Board  of  Free- 
holders ",  which  acts  like  a  constitutional  convention.  It 
frames  a  charter,  submits  it  to  the  people  of  the  city,  and  the 

10  Commonwealth  v.   Patton,  88   Pa.   258. 


ON  BILLS  AFFECTING  LOCAL  GOVERNMENT      223 

legislature's  influence  over  the  city's  affairs,  by  this  means,  is 
confined  within  very  narrow  bounds.  It  was  even  proposed 
in  California  a  few  years  ago  to  extend  a  similar  privilege 
to  counties,  thus  introducing  a  new  principle  into  another  im- 
portant field  of  local  government.  There  is  risk  to-day,  in- 
deed, in  view  of  recent  developments  in  several  States  of 
losing  sight  of  the  fundamental  fact  that  the  municipal  and 
local  governments  have  stood,  and  in  the  nature  of  the  case, 
must  certainly  continue  to  stand  in  very  close  relation  to  the 
State  legislature. 

The  system  of  local  administration  in  this  country,  rural 
and  urban,  is  a  very  difficult  one  for  any  but  the  careful  stu- 
dent clearly  to  understand.  There  are  different  methods  of 
dividing  and  subdividing  the  burden  and  the  responsibility 
)f  local  management  in  the  different  States.  There  are  dif- 
ferent units,  some  larger  and  some  smaller,  the  result  of  an 
listorical  development.  Some  bear  one  name  and  some  an- 
)ther,  though  systematiza-tion,  taking  the  Union  as  a  whole, 

not  at  all  impossible.  Our  whole  scheme  of  local  govern- 
ment rests  on  the  idea  that  by  an  administration  of  affairs 
in  local  districts,  through  officers  locally  chosen,  public  func- 
tions can  be  exercised  to  better  advantage,  and  with  more  hope 
of  the  people's  acquiescing  in  the  result,  than  if  all  power 
emanated  from  some  distant  central  authority.11  The  power 
of  the  law-making  agents  of  the  State,  the  convention  and  the 
legislature,  over  these  municipal  corporations  and  local  dis- 
tricts is  very  great,  both  theoretically  and  in  actual  fact. 
They  are  "  derivative  creations  "  of  the  State.12  There  is 
no  limitation  upon  the  power  of  the  legislature  in  respect  of 
these  corporations,  except  as  it  is  found  in  the  Federal  or 
State  Constitutions,  though  to  the  latter,  as  I  have  already 
indicated,  a  considerable  number  of  restraints  can  now  be 
traced.  The  legislature  in  the  natural  course  of  things,  not 
only  creates,  but  it  can  also  alter  or  abolish  the  local  govern- 
ment, except  of  course  and  always  as  it  is  limited  in  the  exer- 

11  Dillon,  Municipal  Corporations,  4th  ed.,  1890,  Vol.  I,  p.  29. 
p.  55. 


224  THE  REFERENDUM  IN  AMERICA 

cise  of  its  prerogative  by  the  constitution.  But  as  a  result  of 
different  influences,  chief  of  them  being  the  convention,  the 
local  governmental  districts  are  plainly  gaining  larger  liber- 
ties. To  an  extent  that  was  scarcely  intended  even  by  those 
who  framed  our  very  liberal  system  of  local  government, 
the  communities  are  coming  to  be  more  free  from  the  State 
capitals,  and  especially  from  the  State  legislatures.  Grad- 
ually political  power  and  influence  are  being  more  and  more 
distributed.  In  other  words,  we  are  living  in  the  presence 
of  a  movement  whose  leading  characteristic  is  greater  political 
decentralization.  The  convention  looking  about  for  agents 
it  could  trust,  has  given  greater  powers  to  these  local  corpora- 
tions, and  thus  has  pressed  in  upon  the  legislature  from  still 
another  side. 

While  we  before  had  in  this  country  what  we  named  local 
self-government,  in  distinction  to  some  forms  abroad  which 
have  been  evolved  as  a  part  of  a  highly  centralized  system, 
we  seem  to  be  extending  this  idea,  enlarging  our  notions  in 
this  regard,  and  making  the  corporations  freer  still.  Es- 
pecially marked  is  the  tendency  to  emancipate  large  cities  from 
the  legislatures  as  the  result  of  a  movement  toward  what  has 
been  popularly  called  "  Home  Rule  ",  and  we  have  the  re- 
markable manifestation,  therefore,  of  municipalities  govern- 
ing themselves,  not  under  charters  granted  them  by  the  legis- 
latures, but  framed  by  committees  of  their  own  citizens,  and 
adopted  by  their  own  citizens  by  plebiscite,  under  authority 
derived  from  a  rival  law-making  body,  the  constitutional  con- 
vention. 

There  are  in  this  country,  as  Mr.  Bryce  has  so  clearly  ex- 
plained, three  general  systems  of  local  government.  He  has 
called  these  the  town  system,  the  county  system  and  the  mixed 
system,  the  latter  being  one  in  which  neither  the  town,  nor  the 
county  is  of  preponderating  influence,  though  both  units  are 
at  hand.  In  New  England,  the  town,  of  course,  forms  the 
basis  for  all  local  government,  and  although  there  are  counties 
also,  these  are  only  loose  aggregations  of  towns.  It  is  in  the 
latter  that  political  interest  centers,  and  they  can  trace  their 


ON  BILLS  AFFECTING  LOCAL  GOVERNMENT      225 

history  back  to  a  time  when  a  central  colonial  or  State  gov- 
ernment had  not  yet  been  developed.  The  primary  assembly 
of  citizens  still  meets  in  each  town  to  legislate  upon  questions 
of  common  importance.  In  the  South,  as  a  development  from 
the  plantation  system,  the  county,  called  in  Louisiana  the 
parish,  is  the  predominating  unit  in  local  government,  while 
in  the  central  belt  of  States,  the  county  and  town  or  township, 
which  exist  side  by  side,  are  contending  for  the  mastery  so 
hotly,  that  it  is  difficult  to  say  whether  the  larger  or  the 
smaller  area  will  gain  the  victory.  In  those  parts  of  the  West 
where  settlers  from  New  England  have  established  them- 
selves, they  have  taken  with  them  a  love  for  the  town  and  its 
mass  meeting  of  citizens,  though  in  many  other  sections  the 
county,  in  view  of  the  thinness  of  the  population,  and  the 
general  disadvantages  attending  many  governments  where 
one  would  just  as  well  serve  the  people's  few  needs,  is  in  the 
ascendency. 

Existing  side  by  side  with  these  various  forms,  and  coinci- 
dent in  some  cases  with  them,  are  the  municipal  corporations, 
the  cities  of  various  classes  and  grades,  the  boroughs,  villages, 
incorporated  towns  and  hamlets,  which  act  under  charters  of 
more  specific  derivation.  Usually  when  a  certain  area  is  in- 
corporated, it  combines  in  its  new  government,  with  whatever 
new  powers  it  may  have  obtained,  those  formerly  exercised 
over  this  district  by  the  township.  The  township  govern- 
ment, therefore,  in  respect  of  this  territory,  ceases  to  exist,  and 
the  village,  borough  or  whatever  its  name,  takes  its  place. 
The  relations  of  the  new  incorporation  to  the  county,  how- 
ever, continue  as  before.  With  respect  to  larger  cities,  they 
not  infrequently  attain  such  size  that  they  occupy  entire 
counties,  or  are  created  into  separate  counties.  Thus  the 
boundaries  of  not  a  few  of  our  great  municipalities  are  co- 
terminous with  the  counties  in  which  they  are  situated,  the 
city  and  county  administration  being  carried  on  in  such  a  way 
that  to  the  ordinary  citizen  the  point  at  which  one  ceases  to 
act  and  the  other  enters  upon  the  fulfillment  of  its  duties,  is 
not  readily  to  be  distinguished. 


226  THE  REFERENDUM  IN  AMERICA 

There  are,  too,  other  local  districts  which  have  been  organ- 
ized to  serve  some  specific  purpose,  and  which  exercise  quasi 
corporate  power.  One  of  the  most  common  forms  is  the 
school  district,  a  territorial  area  sometimes  coincident  with  the 
town  or  township,  though  more  often  having  different  bound- 
aries. This  exists  as  its  name  implies,  to  further  the  system 
of  public  education,  enabling  the  people  to  tax  and  bond  them- 
selves for  school  purposes.  There  are  likewise  "  irrigation 
districts  "  in  arid  regions,  "  sanitary  districts  "  in  swampy 
lands,  "  levee  districts  "  in  States  bordering  on  rivers  which 
overflow  their  banks, — notably  the  Mississippi,  "  road  dis- 
tricts "  where  it  is  a  question  of  extending  and  improving 
highways,  "  park  districts  ",  "  fire  districts  ",  "  fencing  dis- 
tricts ",  etc. 

It  is  a  fact,  then,  beyond  dispute,  that  the  legislature 
has  very  large  and  indeed  almost  unlimited  powers 
over  municipal  corporations,  and  the  quasi  corporations,  such 
as  counties,  townships,  school  districts,  etc.,  except  as  this 
power  is  in  words  withheld  from  it,  or  it  is  restricted  in  the 
exercise  of  its  functions  by  the  constitution.  The  State  has 
created  the  local  governments,  and  the  State  acting  through 
its  two  law-making  bodies,  the  legislature  and  the  convention, 
is  responsible  for  the  general  conduct  and  management  of  the 
local  corporations.  They  may  be  self-governing  to  a  larger  or 
a  less  extent,  according  as  to  the  terms  of  the  bill  or  charter 
from  which  their  authority  is  derived.  Some  are  self-govern- 
ing by  title  drawn  from  the  legislature,  some  point  to  the  con- 
vention as  the  source  of  their  extensive  powers.  It  is  here 
our  special  task  to  indicate  to  what  degree  the  people  have 
been  brought  in,  by  one  or  the  other  or  both  of  these  bodies, 
and  have  become  their  own  law-makers  in  the  various  local 
communities  of  the  United  States. 

In  the  first  place,  as  we  shall  later  see,  the  distinction  which 
was  drawn  in  the  State  is  valueless  in  the  city,  the  county  and 
the  local  district.  While  in  the  State,  the  legislature  must 
point  to  the  constitution  if  it  desires  to  submit  a  law  to  the 
people,  and  make  its  passage  depend  upon,  their  acceptance 


ON  BILLS  AFFECTING  LOCAL  GOVERNMENT     227 

of  the  act,  in  the  matter  of  laws  for  the  localities,  the  legis- 
lature has  original  authority  by  reason  of  its  comprehensive 
>wers  over  the  corporations  which  it  creates.  There  are 
lot  a  few  instances  in  which  law-making  by  popular  vote  in 
the  local  districts  is  provided  for  in  the  State  Constitutions, 
but  the  legislature  can  employ  the  referendum  without  such 
lefinite  authorization.  The  practice  of  many  years  en- 
trenches us  in  this  view,  the  judiciary  has  generally  given  its 
acquiescence  and  support  to  this  steadily  developing  tendency, 
and  the  only  distinction  to  be  observed  in  this  connection  is 
this, — that  while  a  legislature  must  submit  a  question  of  local 
government  to  vote  of  the  people  when  enjoined  so  to  do  by 
the  constitution,  it  can  in  other  cases  in  which  the  constitution 
silent,  act  at  its  own  sole  discretion.  In  what  classes  of 
subjects,  and  to  what  degree  legislation  by  the  people  has  se- 
ired  a  foothold  in  this  department  of  American  law,  will 
low  be  explained. 

In  the  States,  as  we  have  noted,  three  general  classes  of 
subjects  have  become  topics  for  a  direct  vote  of  the  people: — 
rirst,  subjects  pertaining  to  the  form,  the  scope  and 
jurisdiction  of  the  State  governments,  as  in  the  referenda  on 
ic  question  of  calling  a  constitutional  convention,  on  new 
mstitutions,  on  the  change  of  State  boundaries,  and  the  lo- 
ition  of  State  capitals ;  second,  subjects  having  to  do  with 
>bt,  taxation  and  finance;  third,  subjects  of  a  vexatious 
character  upon  which  the  people  are  likely  violently  to  dis- 
agree, as  the  regulation  or  prohibition  of  the  trade  in  intoxi- 
cating liquors,  the  extension  of  the  suffrage,  etc.  This  classi- 
fication may  be  conveniently  carried  down  into  the  local  dis- 
tricts, and  we  come  first  to  that  large  group  of  subjects  which 
have  a  bearing  upon  the  character,  form  and  jurisdiction  of 
the  local  governments. 

It  will  conduce  to  a  more  intelligible  result  if  this  class  be 
divided  into  four  separate  sub-classes  of  referenda  which  will 
be  found  to  relate  to  the  following  matters : 

(i)  The  determination  of  the  area  of  the  local  political 
districts,  their  boundaries,  etc. 


228  THE  REFERENDUM  IN  AMERICA 

(2)  The  selection  of  county   seats  and   sites   for  court- 
houses, city  halls  and  other  public  buildings. 

(3)  The  selection  of  a  corporate  name. 

(4)  The  choice  of  a  city  charter  or  local  government  act, 
and  the  determination  of  the  particular  legal  form  which  the 
government  shall  take. 

We  have  (i),  therefore,  referenda  to  determine  local  ter- 
ritorial and  boundary  questions.  In  this  class  there  is  in  the 
first  place  a  vote  of  the  people  in  the  matter  of  forming  a  new 
county,  or  of  changing  the  boundaries  of  counties  already 
organized.  Just  as  the  people  of  the  District  of  Maine  were 
allowed  in  1819  to  decide  for  themselves  whether  or  not  they 
should  organize  a  separate  State  and  part  company  with 
Massachusetts,  so  it  is  usual  for  the  people  of  the  principal 
district  into  which  the  State  is  divided  for  purposes  of  local 
administration, — i.  e.,  the  county,  to  determine  the  question 
of  cutting  loose  from  an  older  county,  and  of  leading  a  sep- 
arate life.  In  many  of  the  newer  States  of  the  West,  the  or- 
ganization of  new  counties  takes  place  very  frequently.  As 
the  inhabitants  increase  in  number,  the  counties  already  in 
existence  are  found  to  be  inconveniently  large,  and  it  appears 
desirable  and  expedient  to  reduce  the  limits  of  the  political 
districts,  and  thus  consolidate  the  work  of  local  adminis- 
tration. 

Sometimes  the  change  of  boundaries  is  not  so  thorough- 
going. A  separate  county  is  not  created,  but  a  part  of  one 
county  is  stricken  off,  and  is  added  to  another  county.  This 
referendum,  like  many  that  are  to  follow,  had  its  birth  in 
special  acts  of  the  legislature  passed  to  meet  specific  needs 
in  individual  districts.  It  then  came  to  be  a  subject  for 
general  laws,  a  uniform  process  being  prescribed  in  all  parts 
of  the  State  when  it  was  desired  to  form  new  counties,  and 
alter  the  boundaries  of  old  ones.  More  recently  the  consti- 
tutional conventions  have  taken  hold  of  the  question,  and  as 
if  to  put  it  securely  into  the  State  practice  and  prevent  any 
failure  by  the  legislature,  the  Constitutions  of  twenty  States 
to-day  require  this  referendum,  viz :  Arkansas,  Colorado, 


ON  BILLS  AFFECTING  LOCAL  GOVERNMENT      229 

Idaho,  Illinois,  Kentucky,  Louisiana,  Maryland,  Minnesota, 
Mississippi,  Missouri,  Nebraska,  North  Dakota,  Ohio,  South 
Carolina,  South  Dakota,  Tennessee,  Texas,  Utah,  West 
Virginia  and  Wyoming.13  It  is  usual  to  consult  not  only  the 
people  of  the  district  which  is  to  be  created  into  the  new 
county,  or  the  people  of  the  old  county  which  is  to  receive  the 
new  territory,  as  the  case  may  be,  but  also  the  citizens  of  that 
county  from  which  it  is  proposed  that  the  territory  shall  be 
taken  away.  This  rule,  however,  is  not  always  observed. 
Often  only  the  qualified  electors  residing  within  the  limits  of 
the  immediate  district  to  be  transferred,  participate  in  the  ref- 
erendum. 

Again,  when  it  is  a  question  of  abolishing  a  county  govern- 
ment, and  merging  or  consolidating  it  with  another,  the  oc- 
casion is  frequently  held  to  call  for  a  vote  of  the  people,  and 
this  plebiscite,  in  several  States,  is  guaranteed  by  the  Consti- 
tutions. Definite  rules  are  often  established  by  these  instru- 
ments for  the  guidance  of  the  legislatures  in  their  w.ork  of 
organizing  new  counties,  and  in  moving  county  lines.  It  is 
sometimes  prescribed,  for  instance,  with  a  view  to  preventing 
the  people  from  making  too  free  use  of  this  privilege,  that 
there  shall  be  no  changes  which  will  reduce  a  county's  popu- 
lation below  a  certain  limit  or  its  area  below  a  certain  num- 
ber of  square  miles.14 

In  municipal  corporations,  townships  and  other  local  dis- 
tricts which  are  of  smaller  size  than  the  county,  the  citizens 
at  large  often  have  a  voice  in  deciding  territorial  questions. 
In  practically  all  parts  of  the  Union,  it  is  usual  to  consult 

18  A  single  reference  may  perhaps  suffice.  The  Constitution  of  Ne- 
braska of  1875,  art.  x,  sees.  2.  and  3,  says:  "  No  county  shall  be  divided 
or  have  any  part  stricken  therefrom,  without  first  submitting  the  ques- 
tion to  a  vote  of  the  people  of  the  county,  nor  unless  a  majority  of  all 
the  legal  voters  of  the  county  voting  on  the  question  shall  vote  for 
the  same.  There  shall  be  no  territory  stricken  from  any  organized 
county,  unless  a  majority  of  the  voters  living  in  such  territory  shall 
petition  for  such  division,  and  no  territory  shall  be  added  to  any  or- 
ganized county  without  the  consent  of  the  majority  of  the  voters  of  the 
county  to  which  it  is  proposed  to  be  added." 

14  Cf.  Constitution  of  South  Carolina,  art.  vii,  sees.  3  et  seq. 


23°  THE  REFERENDUM  IN  AMERICA 

their  wishes  when  the  people  inhabiting  any  definite  area  are 
to  be  incorporated  for  purposes  of  government.  Thus,  at  the 
beginning  of  the  life  of  the  municipality  the  people  may  de- 
cide what  the  scope  of  the  corporate  powers  shall  be,  and  from 
the  hamlet  or  village  upward  to  the  largest  city,  the  refer- 
endum finds  its  application. 

When  fresh  territory  is  to  be  added  to  the  district,  a  vote 
of  the  people  is  very  common.  When  one  municipal  corpora- 
tion is  to  be  united  with  another,  it  is  the  almost  universal 
rule  to  consult  directly  with  the  people  of  the  districts  which 
are  to  be  parties  to  the  merger,  if  not  of  both  municipalities, 
at  any  rate  of  the  smaller,  whose  individuality  is  likely  thus  to 
be  swallowed  up.  We  have,  therefore,  the  referenda  upon  the 
annexation  of  one  area  to  another,  the  extension  or  reduction 
of  corporate  limits  and  the  like,  which  are  provided  for  in  the 
statutes  on  local  government  in  nearly  all  the  States.  Local- 
ities which  have  once  been  consolidated  may  be  separated 
again,  upon  vote  of  the  people.  Having  once  received  a 
charter  of  organization,  the  people  of  a  municipal  district 
may  decide  whether  it  shall  be  surrendered.  They  may  vote 
to  remit  certain  portions  of  the  municipal  area  to  the  county. 

Irrigation,  sanitary  and  other  local  districts  organized  to 
carry  on  local  improvements  are  created,  their  boundaries  are 
changed,  and  they  are  disorganized  again  by  direct  vote  oi 
the  people.15     New  school  districts  are  organized  and  two  oi 
more  districts  are  united  by  vote  of  the  citizens,  sometime 
both  male  and  female,  in  States  which  have  school  suffra| 
for  women.     In  Wyoming16  and  South  Carolina17  the  Con- 
stitutions specifically  provide  that  no  city  or  town  shall 
organized  as  a  corporation,  without  the  consent  of  its  inhabi- 
tants.    The  boundaries  of  "  judicial  districts  "  (subdivisions 
of  a  county)   in  Mississippi18  may  be  changed  only  after 
referendum.     The  subdivision  of  townships  is  often  made 

15  California  and  Idaho  afford  a  number  of  statutes  in  point. 

16  Constitution  of   1889,   art.  xiii,   sec.   2. 

17  Constitution  of  1895,  art.  viii,  sec.  2. 

18  Constitution  of  1890,  art.  xiv,  sec.  260. 


ON  BILLS  AFFECTING  LOCAL  GOVERNMENT      231 

subject  for  popular  vote,19  and  wards  in  cities  are  sometimes 
divided  and  new  wards  are  created  in  the  same  way.20  In 
Indiana,  oddly  enough,  the  people  of  the  entire  city  rather 
than  of  the  single  ward  to  be  divided,  determine  the  question 
of  the  establishment  of  a  new  ward.21  Coming  down  to  po- 
litical districts  still  smaller  in  size,  we  find  that  the  people  vote 
by  referendum  in  Ohio  for  the  consolidation  of  the  precincts 
of  a  township.22  So  general,  indeed,  is  this  local  plebiscite 
in  its  various  forms  that  it  may  now  be  regarded  as  a  neces- 
sary part  of  the  American  system  of  local  government, 
though,  of  course,  since  the  legislature  is  in  possession  of 
unlimited  powers  over  the  local  corporations,  except  as  it  is 
restrained  by  the  State  constitution,  it  may  usually  confer  this 
privilege  upon  the  people  or  withdraw  it  from  them  again 
at  its  own  pleasure. 

(2)  The  people  of  local  districts  very  generally  enjoy  the 
right  to  decide  at  what  point  the  local  government  shall  be  ad- 
ministered. Thus  the  unpleasant  question  of  a  choice  of  site 
for  the  county  capital  is  often  referred  to  the  people.  There 
are  local  rivalries  and  jealousies  which  might  react  to  the  dis- 
advantage of  the  members  of  the  legislature,  when  they 
sought  a  re-election,  if  they  should  undertake  to  decide  such  a 
matter  on  their  own  responsibility,  and  they  are  usually  well 
satisfied  in  this  case  to  make  over  their  functions  as  the  law- 
makers to  some  other  agent.  As  the  electors  of  the  State  are 
frequently  asked  to  select  a  site  for  the  State  capitol  buildings, 
so  the  electors  of  the  counties  have  come  to  be  looked  upon 
as  the  proper  authority  to  make  a  choice  of  county  seats. 
This  referendum  has  become  so  firmly  established  in  the 
American  practice,  that  the  Constitutions  of  twenty-two 
States  now  contain  guarantees  on  this  subject,  as  follows: 
Arkansas,  California,  Colorado,  Georgia,  Idaho,  Illinois,  Kan- 

19  Cf.  Pennsylvania  Laws  of   1857,  p.  93;  ibid.,   1879,  p.  52;  Revised 
Statutes  of  Missouri,  1889,  p.   1954. 

20  Pennsylvania  Laws  of  1874,  p.  230;  ibid.,  1889,  P-  277. 

21  Horner's  Indiana  Statutes,  1896,  sec.  3038. 

™  Revised  Statutes  of  Ohio,  7th  ed.,   1896,  sees.   1398  et  seq. 


232  THE  REFERENDUM  IN  AMERICA 

sas,  Kentucky,  Louisiana,  Michigan,  Minnesota,  Mississippi, 
Missouri,  Montana,  Ohio,  South  Carolina,  South  Dakota, 
Tennessee,  Texas,  Utah,  Washington  and  Wisconsin.  The 
Constitution  of  Louisiana  of  1898,  so  recently  adopted,  says 
upon  this  point:  "  All  laws  changing  parish  [county]  lines, 
or  removing  parish  seats,  shall  before  taking  effect,  be  sub- 
mitted to  the  electors  of  the  parish  or  parishes  to  be  affected 
thereby,  at  a  special  election  held  for  that  purpose,  and  the 
lines  or  the  parish  seat  shall  remain  unchanged  unless  two- 
thirds  of  the  qualified  electors  of  the  parish  or  parishes  af- 
fected thereby  vote  in  favor  thereof  at  such  election." 23 
Even  in  States  in  which  the  vote  is  not  made  obligatory  by 
constitution  the  legislatures  usually  submit  county  seat  ques- 
tions to  the  people,  and  this  referendum  is  now  very  familiar 
everywhere. 

In  order  to  minimize  the  ill  effects  of  too  frequent  change, 
devices  of  different  kinds  are  employed.  Thus  it  is  often 
specified  that  when  the  seat  of  government  has  once  been  lo- 
cated, the  question  shall  not  be  referred  to  the  people  again 
for  a  definite  number  of  years.  This  period  may  be  four 
years  or  five  years  or  ten  years  or  even  twenty-five  years 
(Indiana) .  If  the  county  buildings  are  of  considerable  value, 
checks  of  other  kinds  are  often  introduced  as  a  means  of  pre- 
venting a  removal  of  the  capital  to  another  town,  where  new 
buildings  would  have  to  be  erected  at  the  taxpayers'  expense. 
The  tendency  in  recent  years,  as  will  be  explained  in  my 
chapter  devoted  to  the  Initiative,  has  been  wholly  in  the  direc- 
tion of  restricting  the  people  in  the  exercise  of  this  privilege. 
In  new  communities,  the  desire  of  those  persons  residing  in 
some  particular  locality  to  get  the  seat  of  government  which 
they  believe  will  enhance  the  importance  of  their  town,  is  so 
great  that  unless  restraint  were  put  upon  the  people,  these 
county  seat  contests  would  be  engaging  the  electors'  attention 
almost  constantly.  Such  restrictions,  it  is  fair  to  say,  how- 
ever, have  been  introduced  to  counteract  the  very  democratic 

23  Constitution  of  Louisiana,  art.  278. 


ON  BILLS  AFFECTING  LOCAL  GOVERNMENT      233 

influence  of  the  initiative  rather  than  of  the  referendum.  So 
much  bitterness  has  been  engendered  in  the  Western  States 
in  the  struggle  for  county  capitals,  that  rioting  and  bloodshed 
have  sometimes  been  brought  into  the  argument,  when  words 
were  exhausted,  and  the  whole  subject  affords  chapters  which 
are  not  very  creditable  parts  of  the  history  of  the  progress  of 
democratic  government  in  the  United  States. 

As  in  the  counties,  so  in  other  local  districts,  corporate  and 
quasi-corporate,  the  choice  of  the  sites  of  public  buildings  is 
a  question  which  is  often  referred  to  popular  vote.  In  Phil- 
adelphia, for  instance,  when  it  was  desired  that  a  site  should 
be  designated  for  a  city  hall,  which  it  was  proposed  to  erect, 
the  legislature  submitted  the  question  to  the  people  of  the 
city.24  That  site  receiving  a  majority  of  the  whole  number 
of  votes  cast  was  to  be  selected.  The  choice  lay  between 
"  Penn  Square  "  and  "  Washington  Square  ",  and  it  may  be 
of  interest  to  note  that  the  total  number  of  persons  voting  was 
84,450,  Penn  Square  receiving  51,625  votes,  and  Washington 
Square  32,825.  The  total  vote  for  Governor  in  Philadelphia 
in  1872  was  about  118,000,  so  it  is  seen  that  a  question  of  this 
kind  is  sometimes  capable  of  arousing  a  great  deal  of  local 
interest,  as  more  than  70  per  cent,  of  all  the  electors  voting  for 
Governor  in  1872,  had  voted  for  the  city  hall  proposition  in 
1870. 

In  Kansas,  in  reference  to  cities  of  the  first  and  second 
classes,  which  are  county  seats,  there  is  a  general  law  re- 
quiring that  a  proposed  change  of  a  court  house  site  from  one 
part  of  the  city  to  another,  shall  be  submitted  to  popular 
vote.25  An  election  was  held  in  a  Pennsylvania  township 
in  1877,  to  determine  upon  a  site  for  a  poor  house,26  and  in 
Illinois  the  people  of  townships  vote  to  change  the  place  of 
holding  their  town  meetings,27  a  matter  which  of  course 
would  be  decided  by  the  people  anyhow,  in  all  local  dis- 

24  Pennsylvania  Laws,   1870,  p.  677. 

25  Webb's  General  Statutes  of  Kansas,  1897,  chapter  27,  sec.  22. 
30  Laws  of  1877,  p.  40. 

27  Starr  and  Curtis'  Annotated  Statutes  of  Illinois,  1896,  p.  209. 


234  THE  REFERENDUM  IN  AMERICA 

tricts  where  they  still  retain  their  primary  assemblies,  in  com- 
mon with  other  questions  affecting  the  local  government. 

(3)  In  local  communities  there  is  sometimes  a  referendum 
to  select  a  corporate  name.   Thus  in  Idaho,  by  a  law  of  1891, 
the  name  of  any  town,  village  or  city  in  the  State  may  be 
changed  only  upon  a  two- thirds  majority  vote  of  the  electors 
of  the  particular  district  concerned.     A  special  election  on 
this  subject  must  be  called  upon  the  presentation  to  the  proper 
authorities  of  a  petition,  signed  by  a  majority  of  the  legal 
voters  of  the  town,  village  or  city,  as  the  case  may  be.28 

A  somewhat  similar  provision  respecting  the  change 
name  of  local  districts  is  found  in  the  laws  of  Iowa.29 
Iowa  towns  the  ballots  read  as  follows :  "  Shall  the  prc 

sition  to  change  the  name  of to be  adopted  ?  "  tl 

people  voting  "  yes  "  or  "  no  ".30  In  Kansas  also  the  peoj 
may  vote  upon  proposals  to  change  the  name  of  any  town,  vil 
lage,  city  or  township,31  and  in  Minnesota  the  electors 
cities  and  villages  possess  this  privilege.32  These  are  inte 
esting  instances  of  the  people's  direct  participation  in  a  kirn 
of  law-making  which  must  have  a  sentimental  rather  the 
any  real  or  practical  interest  for  them. 

(4)  Again  the  people  of  local  districts  often  decide  as 
the  legal  form  and  character  of  the  government  under  whic 
they  are  to  live,  once  more,  of  course,  only  in  so  far  as  tl 
convention  or  the  legislature  accords  this  privilege  to  thei 
The  most  complete  and  thoroughgoing  resignation  of  fun< 
tions  to  the  whole  body  of  electors  in  the  local  community 
is  met  with  in  the  submission  to  popular  vote  of  city  chartei 
and  local  government  acts.     There  are,  for  example,  refe 
enda  on  "  special  "  acts  of  incorporation,  that  is,  on  acts  aj 
plying  to  separate  single  designated  cities  where  this  kind 

28  Laws  of  Idaho,   1890-91,  p.    127. 

29  Cf.  Annotated  Code  of  the  State  of  Iowa,  1897,  sees.  461  and  580. 

30  Ibid.,  sees.   628-629. 

31  Webb's  General  Statutes  of  Kansas,   1897,  ch.   125,  sec.   3. 

32  Laws  of  Minnesota,  1895,  pp.  16  and  641 ;  ibid.,  1897,  P-  510;  cf.  als 
Laws  of  New  York,  1897,  p.  454  ;  Public  Laws  of  North  Carolina,  189* 
p.  41,  and  Compiled  Laws  of  Utah,  1888,  Vol.  I,  p.  314. 


ON  BILLS  AFFECTING  LOCAL  GOVERNMENT      235 

legislation  is  still  permitted  by  the  State  constitution.  In 
States  having  "  general  "  laws,  the  people  of  municipalities 
decide  whether  they  shall  give  up  a  town,  village  or  borough 
government,  and  adopt  city  government,  or  abandon  a  special 
charter  under  which  they  have  previously  acted,  and  come 
under  the  general  law ;  they  may  decide  too  when  they  have 
once  been  incorporated  under  the  general  law  whether  they 
shall  advance  or  reduce  their  grade,  and  enter  a  new  class, 
thus  securing  a  charter  which  may  perhaps  be  better  adapted 
to  local  needs.  In  some  States,  as  Missouri,  California, 
Washington  and  Minnesota,  there  is  finally  an  almost  com- 
plete surrender  of  the  charter-making  power  to  the  cities,  the 
people  thereof  voting  to  approve  or  reject  the  charter,  the 
frame  of  which  their  own  delegates  have  prepared.  In  Cali- 
fornia, it  was  lately  proposed  to  give  the  people  of  counties 
similar  rights  with  respect  to  the  framing  of  their  county  gov- 
ernment acts,33  a  measure  which,  had  it  become  a  part  of  the 
State  Constitution,  would  have  marked  a  new  and  sweeping 
development  in  the  annals  of  local  government  in  the  United 
States.  This  reform  would  have  rendered  each  county  in 
the  State  of  California,  as  well  as  each  city  containing  a  pop- 
ulation of  more  than  3,500,  in  a  measure  self-governing,  and 
free  from  the  legislature's  control. 

Since  it  illustrates  an  important  phase  of  American  political 
development,  and  is  a  contribution  to  the  great  number  of 
panaceas  which  have  been  suggested  as  a  cure  for  the  singular 
maladies  afflicting  the  government  of  cities  in  the  United 
States  the  referendum  on  city  charters  is  entitled  to  and  will 
receive  separate  treatment  in  a  subsequent  chapter  of  this 
book.84 

It  is  the  custom  too  for  many  legislatures  to  submit  various 
kinds  of  bills  which  ostensibly  or  disguisedly  amend  city 
charters  and  the  established  systems  of  local  government. 
These  are  mostly  presented  as  "  special  laws  ",  or  as  laws 

83  Statutes  of  California,   1897,  P-  641. 

84  Infra,  chap.    14. 


236  THE  REFERENDUM  IN  AMERICA 

which  if  nominally  "  general  "  are  essentially  special  in  their 
effect.  They  are  of  many  different  outward  types.  There 
are  "  alternate  "  laws,  the  people  of  a  city  or  county  selecting 
one  or  the  other  as  they  may  prefer,  and  "  local  option  "  laws 
which  are  "  general  "  for  all  the  localities,  but  which  come 
into  effect  only  in  such  districts  as  may  by  popular  vote  agree 
to  adopt  them.  Many  of  these  laws  will  appear  in  our  subse- 
quent classifications,  but  others,  because  of  the  subject  matter 
of  which  they  treat,  must  be  alluded  to  in  this  place. 

The  recent  practice  in  New  Jersey  furnishes  some  notable 
illustrations.  We  have,  for  instance,  the  act  of  1886,  con- 
cerning cities35  which  fixes  the  terms  of  office  of  the  mayor 
and  the  members  of  the  city  council,  develops  the  mayor's 
powers  and  prescribes  his  duties  in  respect  of  ordinances  and 
resolutions,  selects  a  day  for  the  holding  of  municipal  elec- 
tions, etc.  This  is  clearly  not  a  regular  charter  or  act  of  in- 
corporation though  it  is  in  effect  an  act  amending  a  charter. 
It  is  to  be  forceful  in  no  city  until  it  is  submitted  to  the  people 
thereof,  and  they  shall  vote  to  accept  it.  By  a  law  passed 
by  the  legislature  of  New  Jersey  in  1885,  a  proposition  to 
place  the  public  schools  of  cities  in  charge  of  a  "  board  of 
education  ",  which  should  be  newly  created  and  take  the  place 
of  an  older  administrative  body,  was  referred  to  the  people. 
"  The  board  of  aldermen  or  common  council  "  might  "  sub 
the  question  of  the  acceptance  or  rejection  of  the  act  "  to  t 
voters  of  any  city  which  should  express  a  desire  to  avail  its 
of  this  privilege.36  The  question  of  "  removing  "  the  fi 
and  police  departments  of  the  cities  of  New  Jersey  fro 
"  political  control  "  by  the  creation  of  boards  of  commissio 
ers  to  be  nominated  by  the  mayor,  thus  materially  modifyi 
the  scheme  of  government  in  those  municipalities  voting 
adopt  this  policy  was  left  to  the  arbitrament  of  the  people 
a  law  which  passed  the  legislature  of  that  State  in  1885. 37 

Laws  of  this  kind,  many  of  them  comprehensive  enough 

35  General  Statutes  of  New  Jersey,  1896,  p.  575;  P.  L.  1886,  p.  361. 
88  General  Statutes  of  New  Jersey,  p.   3085. 
37  Ibid.,  p.   1551. 


ON  BILLS  AFFECTING  LOCAL  GOVERNMENT      237 

serve  as  entire  charters,  some  being  financial  proposals  of  un- 
certain worth,  for  which  the  members  of  the  legislature  are 
not  desirous  of  assuming  the  responsibility,  and  others  mere 
acts  arranging  alternate  systems  of  government  and  admin- 
istration, abound  in  the  statute  books  of  New  Jersey.  Such 
confusion  exists  in  the  public  corporation  law  of  no  other 
vState,  and  there  are  conditional  acts  it  would  seem  to  meet 
almost  any  conceivable  need,  which  may  arise  in  any  town 
cr  city  in  the  Commonwealth. 

In  Illinois  by  an  act  passed  in  1895,  the  people  of  any  city 
in  the  State  may  adopt  the  provisions  of  a  general  law  regu- 
lating and  reforming  the  civil  service.  In  the  submission  of 
this  law  the  legislature  probably  had  a  mixture  of  motives.38 
There  ought  to  have  been,  in  the  first  instance,  no  question 
about  the  desirability  of  such  a  law,  but  as  it  was  a  reform 
of  which  some  classes  of  American  politicians  seem  not  to  be 
fond,  as  it  involved  some  outlay  in  salaries  for  certain  admin- 
istrative officers  (civil  service  commissioners)  and  as  it  al- 
tered the  city  charters,  it  was  passed  in  a  conditional  form. 

In  Iowa  the  people  may  vote  upon  the  proposition  to  in- 
crease the  number  of  "  supervisors  ",  as  the  members  of  a 
county  administrative  board  are  called,  from  three  to  five  or 
seven  members.  Later  the  number  may  be  reduced  again 
to  five  or  to  three,  as  the  voters  may  elect.39  Somewhat  sim- 
ilar privileges  are  enjoyed  by  the  people  of  the  counties  of 
Nebraska,40  and  of  North  Dakota.41  In  certain  local  districts 
of  Ohio,  the  electors  may  determine  whether  the  number  of 
members  of  the  "  board  of  education  "  shall  be  increased  from 
three  to  six,  the  ballots  containing  the  words  "  Board — 
Change  "  and  "  Board — No  Change  ".42 

Although  it  is  rarely  that  laws  bearing  upon  the  important 

38  Starr  and  Curtis'  Annotated  Statutes  of  Illinois,  2nd  ed.,  1806  p. 
826. 

89  Annotated  Code  of  the  State  of  Iowa,  1897,  P-  221. 

40  Compiled  Statutes  of  Nebraska,  8th  ed.,  1897,  p.  430. 

41  Revised  Codes  of  North  Dakota,  1895,  sec.  1892. 

42  Revised  Statutes  of  Ohio,  7th  ed.,   1896,  sec.  3911. 


238  THE  REFERENDUM  IN  AMERICA 

subject  of  the  administration  of  justice  are  passed  in  a  con- 
ditional form,  a  few  points  as  to  the  organization  of  the 
courts  are  sometimes  left  to  the  determination  of  the  people. 
Thus  in  South  Carolina,  county  courts  are  established  upo 
popular  vote  in  the  counties,43  and  in  West  Virginia  with  the 
assent  of  a  majority  of  the  voters  of  a  county,  the  county 
court  may  be  abolished,  and  may  be  replaced  by  another  tri 
bunal.44    In  any  city  of  more  than  7,000  inhabitants,  in  low 
a  "  superior  court  "  may  be  established  to  take  the  place  of  th 
"  police  court  ",45     The  court  so  created  may  be  abolishe 
again  by  direct  vote  of  the  people.46 

A  law  of  1892,  in  Kentucky,  gives  the  people  of  countie 
a  choice  as  to  the  character  of  the  county  governing  board 
They  may  have  a  "  fiscal  court  "  composed  of  the  judge  of  th 
county  court,  and  the  justices  of  the  peace  of  the  county,  o 
a  "  fiscal  court  "  composed  of  three  commissioners  electe 
scrutin  de  llste  for  the  whole  county  for  their  special  task,  t 
gether  with  the  county  judge.    A  majority  of  the  votes 
upon  the  question  are  decisive,  and  the  election  on  this  su 
ject  in  any  county  shall  not  be  held  oftener  than  once  in  eve 
eight  years.47 

In  any  town  in  Massachusetts,  containing  at  least  12, 
inhabitants,  which  may  desire  to  adopt  a  city  government,  th 
people  may  determine  whether  the  city  legislature  shall  hav 
one  chamber  or  two,  and  the  terms  for  which  the  membe 
thereof,  and  the  mayor,  shall  continue  in  office.48     In  citi 
of  Illinois,  the  question  of  "  minority  representation  "  in  th 
city  council  is  referred  to  popular  vote.49     In  Missouri  citi 
of  the  second  class,  with  the  approval  of  the  people,  may  e 
tablish  boards  of  public  works,  which  as  their  name  woul 

43  Constitution  of  South  Carolina,  art.  v,  sec.   i. 

44  Constitution  of  1872,  art.  viii,  sec.  34. 
48  Code  of  Iowa,  p.  171. 

48  Ibid.,  p.  174. 

47  Kentucky   Statutes,    1894,  p.   687. 

48  Supplement   to   the   Public    Statutes   of   Massachusetts,    1889, 
p.  623. 

49  Annotated  Statutes  of  Illinois,  p.   687. 


! 


ON  BILLS  AFFECTING  LOCAL  GOVERNMENT      239 

imply,  are  to  exercise  control  over  the  various  public  works 
and  buildings  within  the  city  limits.  These  boards  may  be 
abolished  again  on  vote  of  the  people  in  which  case  the  en- 
terprises under  their  care  revert  to  other  administrative 
agents.50 

The  electors  are  sometimes  given  a  hand  too  in  matters 
pertaining  to  local  administration  by  the  system  of  "  alternate 
laws  ".  This  kind  of  conditional  legislation  is  well  illus- 
trated in  West  Virginia  in  several  acts  on  the  subject  of  roads. 
In  that  State  the  legislature  has  definitely  prescribed  a  method 
by  which  in  the  usual  course  of  things,  highway  affairs  are 
locally  regulated.  In  addition,  however,  there  are  as  many 
as  three  alternate  methods  provided  for,  in  the  laws  of  1872- 
73,  1 88 1,  and  1891,  respectively,  which  may  be  adopted  in  any 
county  or  district  in  the  State  when  the  people  thereof  vote 
in  favor  of  the  change.  Having  once  accepted  the  provisions 
of  the  alternate  law,  the  electors  if  they  desire,  may  later  vote 
to  discontinue  the  new  system  of  administration.51  In  Michi- 
gan the  voters  decide  whether  the  county  or  the  township 
shall  take  charge  of  the  roads,52  and  in  Minnesota  and  in  some 
other  States,  the  people  determine  whether  the  county  or 
the  town  shall  care  for  the  poor.53  Several  other  questions 
having  to  do  more  or  less  directly  with  the  form  and  char- 
acter of  the  local  governments  are  sometimes  referred  to 
popular  vote,  and  thus  the  whole  body  of  citizens  put  their 
direct  impress  upon  the  legal  system  by  which  their  common 
affairs  are  regulated. 

In  many  States  it  is  a  matter  for  the  people  themselves  to 
determine  whether  or  not  counties  shall  be  subdivided  and  or- 
ganized into  townships,  and  once  organized,  whether  they 
shall  be  disorganized  again.  Mr.  Bryce  regards  this  referen- 
dum as  one  of  the  results  of  the  conflict  between  the  county 

80  Laws  of  Missouri,  1891,  p.  52. 

61  Code  of  West  Virginia,  3rd  ed.,  1891,  pp.  338  et  seq. 

62  Laws   of    Michigan,    1893,    P-    239. 

83  General  Statutes  of  the  State  of  Minnesota,  1894,  sec.  1984;  cf. 
Laws  of  Pennsylvania,  1879;  P'  78. 


240  THE  REFERENDUM  IN  AMERICA 

and  the  township  system  of  government  in  the  Middle  W< 
where  the  streams  of  influence  from  New  England  and  the 
South  join,  and  it  is  uncertain  for  the  time  being,  which  sh; 
have  the  mastery.  In  a  measure  this  is  true,  but  it  is  furth< 
more  a  natural  development  in  newly  settled  territory,  to  p; 
from  the  larger  to  the  smaller  unit.  A  sparsely  settled  dis 
trict  can  naturally  manage  with  a  simpler  form  of  governmei 
than  a  community  in  which  men's  interests  meet  and  ovei 
lap  on  every  hand.  When  a  county  becomes  more  populoi 
and  public  affairs  engross  a  larger  share  of  the  people's 
tention,  the  need  is  felt  for  a  more  intensive  system  of  a< 
ministration. 

The  citizens  of  the  counties  often  themselves  decide  whei 
in  their  view,  the  time  has  arrived  for  the  township  system 
to  be  introduced.    In  seven  States, — California,  Illinois,  Mi< 
souri,  Nebraska,  North  Dakota,  Washington  and  Wyoming 
this  referendum  finds  a  place  in  the  Constitutions.    For  e: 
ample,  the  Constitution  of  Missouri  says :  "  The  General 
sembly  may  provide  by  general  law,  for  township  organi; 
tion,  under  which  any  county  may  organize  whenever  a 
jority  of  the  legal  voters  of  such  county  voting  at  any  genei 
election,  shall  so  determine.     *     *     *     In  any  county  whic 
shall  have  adopted  township  organization,  the  question  of  cot 
tinuing  the  same  may  be  submitted  to  a  vote  of  the  electors  of 
such  county  at  a  general  election,  in  the  manner  that  shall  be 
provided  by  law ;  and  if  a  majority  of  all  the  votes  cast  upon 
that  question  shall  be  against  township  organization,  it  shall 
cease  in  said  county."  54 

54  Constitution  of   1875,  ai"t.   ix>   sees.  8  and  9. 


/M>.^,;  CHAPTER  X 

THE  LOCAL  REFERENDUM LOAN  BILLS  AND  FINANCIAL  PRO- 
POSALS 

COMING  now  to  the  second  large  class  of  referenda  in  com- 
munities in  the  United  States  we  find  that  it  includes  those 
in  relation  to  taxation  and  expenditure  and  the  administra- 
tion of  the  local  finances.  This  is  a  department  of  public  man- 
agement in  which  there  is  room  for  much  abuse,  especially  in 
large  cities,  and  as  a  convenient  method,  in  the  first  place, 
of  putting  a  wholesome  check  upon  representative  officials 
and,  in  the  second  place,  of  transferring  the  responsibility  for 
some  rather  debatable  policy  to  the  shoulders  of  those  upon 
whom  the  burden  will  bear,  that  is  the  people  at  large,  this 
plebiscite  has  attained  a  remarkable  development  in  all  parts 
of  the  Union.  The  officers  of  cities,  counties  and  towns  in 
many  cases  grossly  betrayed  the  trust  reposed  in  them  and 
often  heaped  up  large  debts  which  were  contracted  on  the 
credit  of  the  community.  This  debt  at  times  has  weighed 
very  heavily  upon  the  ratepayers,  and  in  some  cases  had 
wholly  to  be  repudiated,  as  in  a  few  of  the  States  also,  at  an 
earlier  period.  To  avoid  the  repetition  of  such  scandals  and 
to  keep  the  debt  contracting  proclivities  of  city  councilmen, 
county  commissioners  and  other  officers  entrusted  with  such 
powers  in  reference  to  the  various  local  communities  within 
proper  bounds,  the  constitutional  convention  at  last  took  this 
subject  in  hand.  It  has  thus  come  about  that  there  is  a 
large  number  of  constitutional  provisions  on  this  topic  at 
the  present  time,  and  these  have  been  supplemented  by  laws 
passed  by  the  legislatures,  until  the  enactments  in  this  field 
of  legislation  are  of  almost  endless  variety.  There  is  not  a 
State  in  the  Union  in  which  the  electors  at  large  have  not  been 

241 


242  THE  REFERENDUM  IN  AMERICA 

brought  in  to  some  extent  to  balance  the  representative  boards 
and  legislatures,  with  the  object  of  securing  honester  and 
more  economical  management.  In  the  main  the  results  are 
considered  to  have  been  better,  strange  as  this  may  seem 
to  those  who  cannot  well  conceive  of  government  except  as 
it  is  embodied  in  the  persons  of  a  few  wise  and  considerate 
men,  than  under  the  old  system  prior  to  the  time  the  people 
were  invested  with  the  local  veto. 

This  referendum  appears  in  at  least  three  separate  forms 
three  large  classes  of  subjects  as  follows: 

1 i )  Loaning  the  public  credit  to  industrial  and  other  pi 
vate  companies. 

(2)  Expenditure  of  public  money  directly  by  the  govei 
ment  itself. 

(3)  The  sale  or  lease  of  public  lands  and  other  public  proj 
erty. 

The  local  plebiscite  on  these  three  different  classes  of  sul 
jects  is  almost  entirely  an  outgrowth  of  the  latter  half  of  tl 
nineteenth  century.  A  beginning  was  made  with  it,  hoi 
ever,  at  a  somewhat  earlier  period  in  a  form  which  is  so  chai 
acteristic  that  I  have  put  it  at  the  head  of  the  list,  nameb 
(i)  The  loaning  of  the  public  credit  to  industrial  and  otto 
private  companies  organized  for  the  purpose  of  helping  foi 
ward  with  the  economic  development  of  a  given  territori; 
district.  The  experience  has  not  been  the  same  among 
peoples  but  it  was  the  method  in  vogue  in  the  self-govei 
ing  Anglo-Saxon  communities  of  America  at  first  to  give 
little  as  possible  to  the  government,  retaining  for  private  pui 
suit  and  gain  the  business  of  transportation,  public  lighting 
the  furnishing  of  a  public  water  supply,  etc.  The  Americai 
communities  had  in  the  beginning  only  a  bare  framework 
power.  When  roads  were  to  be  built  they  were  construct* 
and  owned  by  private  companies  who  charged  travellers 
fee  for  passing  over  them.  When  streams  were  to  be  crosse< 
private  persons  bridged  them  and  collected  tolls  of  thos 
who  wished  to  reach  the  other  side.  The  railways  and  most 
of  the  American  canals  have  had  a  similar  history  and  the 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    243 

government  with  us — at  any  rate  in  the  newer  communities — 
until  a  recent  time,  has  exercised  few  functions  which  would 
make  it  a  competitor  in  any  way  with  private  enterprise.  So 
firmly  established  was  this  idea  in  our  polity  that  it  was  car- 
ried to  the  point  of  excluding  the  community  from  the  func- 
tion of  educating  the  young  at  government  cost,  and  many 
other  of  the  state's  activities,  now  rarely  brought  into  ques- 
tion by  anyone,  had  not  yet  begun  to  be  exercised.  It  was 
argued,  on  the  one  hand,  that  it  could  not  be  the  duty  of 
the  richer  and  more  favored  classes  to  assist  in  educating  the 
children  of  the  poor,  and,  on  the  other  hand,  that  it  would 
be  an  injustice  for  government  to  found  and  maintain  free 
schools  since  those  citizens  who  conducted  educational  in- 
stitutions for  private  profit  would  thus  be  deprived  of  a 
means  of  personal  financial  advancement.  Ideas  in  the 
laisses  faire  economy  so  extreme  as  these  have  been  gen- 
erally abandoned.  But  the  general  question  as  to  the  ex- 
pediency of  performing  many  classes  of  local  functions  at 
the  public  expense  is  still  a  matter  which  is  frequently  re- 
ferred to  a  direct  vote  of  the  taxpayers. 

It  was  an  early  stage  of  the  development  toward  complete 
state  ownership  and  management  to  assist  private  corpora- 
tions in  respect  of  local  works,  and  the  people's  participation 
in  voting  grants  and  guarantees  to  improvement  companies  of 
this  kind  was  an  interesting  phase  of  the  movement.  A  very 
early  instance  of  the  employment  of  such  a  method  as  a  means 
to  an  amicable  result  in  the  settlement  of  a  question  of  appro- 
priating public  money  in  behalf  of  an  internal  improvement 
is  furnished  by  Virginia.1  In  1784  the  legislature  of  that 
State  passed  an  act  which  had  for  its  object  the  deepening 
of  the  channel  of  the  James  River.  Later  it  was  desired  still 
further  to  open  up  the  interior  of  the  country,  to  establish, 
indeed,  a  complete  line  of  communication  from  tidewater  by 
way  of  the  James  and  Jackson  Rivers  to  the  Kanawha  River 
and  thence  to  the  Ohio  and  the  Mississippi.  "  A  large  ma- 

1  Acts  of  Virginia,    1832-33,  p.   57. 


244  THE  REFERENDUM  IN  AMERICA 

jority  of  the  citizens  "  of  Richmond  being  of  opinion  that 
the  corporate  authorities  should  "  subscribe  to  the  stock  "  of 
a  company,  "  the  James  River  and  Kanawha  Company  ",  an 
act  was  adopted  by  the  Virginia  legislature  in  1833  authoriz- 
ing the  city  to  make  a  subscription  of  $400,000  to  this  en- 
terprise.2    In  1835  a  second  act  conferring  authority  upon 
the  city  to  subscribe  an  additional  sum  of  $250,000  to  the 
stock  of  the  company  was  passed  by  the  State  legislature, 
again  at  the  expressed  desire  of  the  people  of  Richmond.3 
In  each  case  the  city  authorities  were  empowered  to  borrow 
money  on  the  credit  of  the  municipality  and  to  tax  the  citiz< 
in  order  to  raise  the  necessary  funds  to  pay  the  interest  on  tl 
loan  and  the  principal  of  the  same  as  it  should  fall  due.    Al 
though  these  laws  were  not  submitted  to  the  people  of  Rich- 
mond by  way  of  the  referendum,  they  were  passed  in  respom 
to  petitions  very  numerously  signed,  and  the  principle  is 
similar  that  the  case  is  of  much  interest  as  indicating  ho> 
one  important  class  of  conditional  legislation  made  its  wa} 
into  the  American  practice. 

The  question  of  communication  was  a  very  serious  one  as 
the  colonists  pushed  farther  and  farther  into  the  interior  oi 
the  continent.    The  commercial  interests  of  the  country  wei 
rapidly  expanding,  the  need  for  facilities  of  transport  froi 
one  section  of  the  Union  to  another  was  much  greater  thai 
was  the  ability  of  a  financially  poor  population  to  satisfy  it 
Canals    were  to  be  constructed  wherever  water  communica- 
tion was  possible.      '  Turnpikes  ",  "  plank  roads  "  and  othei 
highways  of  public  traffic  were  to  be  built  so  that  wagoning 
over  the  natural,  unimproved  routes  would  be  less  laborioi 
and  haulage  by  horse  or  mule  or  ox  between  the  princij 
points  might  become  a  feasible  form  of  commerce.     A  c< 
ditional  law  to  the  advantage  of  private  turnpike  compani< 
was  passed  by  the  legislature  of  Pennsylvania  in  1842. 4 

2  Acts  of  Virginia,   1832-33,  P-  57- 
8  Acts   of  Virginia,    1834-35,   P-    7°  >   cf.    Goddin   v.   Crump,   8   Leigh. 
p.   120. 
*Laws  of  1842,  p.  233. 


ON   LOAN  BILLS  AND  FINANCIAL  PROPOSALS    245 

this  act  whenever  "  at  least  twelve  taxpayers  "  of  any  town- 
ship should  petition  the  supervisors  of  public  highways  to 
subscribe  to  the  stock  of  a  turnpike  company,  which  pro- 
ved to  construct  its  roads  through  the  township,  the  super- 
visors, after  advertising  the  election  in  notices  posted  up  at 
six  "  of  the  most  noted  places  "  in  the  township,  were  obliged 
to  submit  to  the  people  the  question  of  "  accepting  the  pro- 
visions "  of  the  act.    At  the  same  time  the  electors  were  to 
lecide  what  sum  the  township  should  subscribe  to  the  com- 
pany.   This  act  in  common  with  some  of  a  similar  nature  in 
other  States  remains  unrepealed  to  this  day  though  elections 
on  the  subject  in  Pennsylvania  have  been  rarely  held  in  re- 
cent years.5    The  governing  boards  of  counties  in  Kentucky 
ty  take  stock   in   companies  organized  to  construct  and 
>perate  turnpike,  plank  and  gravel  roads  within  the  bounds 
>f  these  counties,  if  the  people  first  assent  to  the  levy  of  a  tax 
to  pay  for  the  subscription.6     The  citizens  of  any  township 
in  Michigan,  in  lieu  of  an  actual  grant  of  money,  may  vote 
plank  road  company  the  "  right  of  way  "  through  the  town- 
ship, giving  to  the  company,  therefore,  the  privilege  to  use 
the  public  highways.7    Counties,  towns,  cities  and  other  local 
)mmunities  exercising  fiduciary  functions  in  Minnesota  may 
rith  the  popular  assent  issue  their  bonds  in  exchange  for 
ic  stock  of  companies  which  are  organized  to  construct  ca- 
lals  and  improve  the  waterways  of  that  State.8   The  citizens 
)f  counties,  cities  and  towns  in  Virginia  have  the  less  specific 
privilege  of  voting  a  public  subscription  "  to  the  stock  of 
any  internal  improvement  company  "  which  has  been  incor- 
porated by  the  State  legislature.9 

When  the  railway  appeared  as  an  agent  in  the  work  of  in- 
ternal development,  yet  larger  outlays  were  required  and 
nearly  all  the  States,  in  order  to  help  on  with  railway  build- 

B  Cf .    Brightly's    Purdon's    Digest    of    Pennsylvania    Laws,    isth    ecL, 
1894,  P-  2045. 
*  Barbour  and  Carroll's  Kentucky  Statutes,  1894,  sees.  4734  et  seq. 

7  Public  Acts  of  Michigan,   1897,  p.   118. 

8  Statutes  of  Minnesota,  1894,  sees.  1441  et  seq. 

9  Code  of  Virginia,   1887,  sec.   1243. 


246  THE  REFERENDUM  IN  AMERICA 

ing,  permitted  the  people  to  decide  whether  the  local  gov- 
ernments should  subscribe  to  the  stock  of  the  companies  on 
public  account.  The  people  in  this  case,  however,  as  in 
some  others  which  I  shall  soon  mention,  have  seemed  not  to 
serve  as  an  effective  brake  upon  the  too  free  use  of  public 
moneys.  Although  the  theory  clearly  indicates  that  those 
upon  whom  such  a  burden  will  ultimately  fall  would  aim  to 
discourage  large  expenditures  of  this  kind,  the  public  funds 
to  most  men  appear  to  come  from  an  inexhaustible  source, 
and  they  vote  money  away  with  little  thought  as  to  how  the 
debt  shall  be  paid.  In  the  presence  of  a  proposition  for  the 
construction  of  a  railway  through  their  own  county  or  town 
the  prospects  are  such  as  often  to  induce  great  liberality  to 
private  companies.  As  a  result,  grants  have  been  made  most 
unwisely,  and  the  experience  of  municipalities  in  nearly  all 
sections  of  the  Union  has  been  very  unfortunate.  By  these 
local  subsidies  railways  were  built  which  were  in  no  sense 
profitable  as  business  enterprises.  Financial  difficulties  fol- 
lowed and  involved  the  counties  and  cities  seriously,  so  that 
the  legislatures  or  the  conventions  in  many  States  have  lately 
prohibited  such  grants  absolutely.  The  public  policy  regard- 
ing railways  has  undergone  a  complete  volte-face,  so  that 
to-day  railway  corporations  must  exercise  great  alertness  to 
defend  their  own  interests  in  the  legislative  assemblies,  am 
the  tendency  is  distinctly  in  the  direction  of  applying  restraint 
to  the  companies,  while  there  is  a  growing  disposition  to  lool 
upon  the  whole  business  of  transportation  as  one  inhering 
solely  in  the  government  as  in  most  European  states. 

The  subscription  abuse  was  considered  to  have  become 
great  in  Illinois  by  1870  that  a  separate  section  of  the  con- 
stitution was  submitted  to  and  adopted  by  the  people  of  th< 
State.  This  provision  was  as  follows :  "  No  county,  city, 
town,  township  or  other  municipality  shall  ever  become  a  sul 
scriber  to  the  capital  stock  of  any  railroad  or  private  corpora- 
tion or  make  donation  to  or  loan  its  credit  in  aid  of  sucl 
corporation."  10  This  is  an  effectual  prohibition  upon  tl 

10  Constitution  of  Illinois  of   1870,  separate  section. 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    247 

legislature  and  prevents  it  authorizing  such  grants  even  by 
way  of  the  referendum. 

In  several  States,  however,  the  practice  is  still  permitted 
and  is  in  general  and  frequent  use.  In  not  a  few  cases  a 
plebiscite,  when  it  is  a  question  of  making  public  grants  to 
companies,  is  specifically  authorized  by  the  State  constitu- 
tion, as  in  North  Dakota,  Nebraska,  Tennessee  and  North 
Carolina.  In  North  Dakota,  for  instance,  the  Constitution 
says :  "  Neither  the  State  nor  any  county,  city,  township, 
town,  school  district  or  any  other  political  subdivision  shall 
loan,  or  give  its  credit,  or  make  donations  to  or  in  aid  of  any 
individual,  association,  or  corporation,  except  for  necessary 
support  of  the  poor,  nor  subscribe  to  or  become  the  owner 
of  the  capital  stock  of  any  association,  nor  shall  the  State 
engage  in  any  work  of  internal  improvement  unless  author- 
ized by  a  two-thirds  vote  of  the  people."  11 

The  Constitution  of  Tennessee  says :  "  The  credit  of  no 
county,  city  or  town  shall  be  given  or  loaned  to  or  in  aid  of 
any  person,  company,  association,  or  corporation  except  upon 
an  election  to  be  held  by  the  qualified  voters  of  such  county, 
city  or  town  and  the  assent  of  three-fourths  of  the  votes  cast 
at  said  election,"  etc.12 

And  in  Nebraska  the  Constitution  says :  "  No  city,  county, 
town,  precinct,  municipality  or  other  subdivision  of  the  State 
shall  ever  make  donations  to  any  railroad  or  other  work  of 
internal  improvement  unless  a  proposition  so  to  do  shall  have 
been  first  submitted  to  the  qualified  electors  thereof  at  an 
election  by  authority  of  law,"  etc.13 

The  compiled  statutes  of  Maryland,14  North  Carolina,15 

11  Art.  xii,  sec.   185. 

12  Art.   ii,   sec.   29. 

13  Art.  xii,  sec.  2 ;  cf.  Constitution  of  Maryland,  art-  xi,  sec.  7,  for  a 
similar  plebiscite  in  Baltimore,  and  Constitution  of  North  Carolina,  art. 
vii,  sec.  7. 

14  Cf.  Laws  of  Maryland,   1890,  p.  430;   Laws  of  1892,  p.  489;   Laws 
of  1894,  PP-  202,  884,  etc. 

15  Cf.  Laws  of  1887,  pp.  82,  157,  191,  215,  336,  346,  374,  434,  456,  523, 
528;  Laws  of  1897,  pp.  72,  98,  213,  493,  etc. 


248  THE  REFERENDUM  IN  AMERICA 

South  Carolina  16  and  Tennessee  17  contain  many  recent  in- 
stances of  conditional  legislation,  authorizing  public  donations 
and  loans  to  railway  companies.  In  the  laws  passed  at  a  sin- 
gle session  of  the  legislature  of  North  Carolina  in  1889  I 
have  found  fourteen  separate  special  acts  by  which  the  ques- 
tion of  making  such  subscriptions  was  submitted  to  the  people 
of  local  districts  in  that  State.  The  citizens  of  townships, 
towns  or  cities  in  Iowa  may  vote  a  grant  of  money  to  "  any 
railway  company  which  is  or  may  become  incorporated  under 
the  laws  of  the  State  to  aid  in  the  construction  of  a  projected 
railroad  with  in  the  State".18  In  Kansas  in  the  same  way 
counties,  cities  and  townships  may  extend  their  aid  to  rail- 
way companies,  if  the  electors  thereof  directly  approve  the 
appropriation.19  In  Louisiana  the  people  of  any  parish,  city 
or  incorporated  town  have  the  more  general  privilege  of 
voting  a  special  tax  in  benefit  of  "  any  work  of  public  im- 
provement or  railway  enterprise  ".20  There  are  elections  on 
the  same  subject  in  the  counties  and  other  local  districts  of 
West  Virginia ; 21  and  in  Wisconsin  donations  may  be  made 
to  railway  corporations  by  a  like  process.22  In  towns  and 
cities  in  Iowa  the  citizens  may  agree  by  way  of  the  referendum 
to  donate  "  to  any  railway  company  owning  a  line  of  railroad 
in  operation  or  in  process  of  construction  in  such  city  or 
tovi^  sufficient  land  for  depot  grounds,  engine  houses  and 
machine  shops  ".23 

Not  infrequently  the  inhabitants  of  local  communities  in 
America  are  invited  to  determine  whether  they  will  grant  a 
bonus  to  an  industrial  or  manufacturing  company  which  it  is 
desired  shall  establish  a  plant  in  a  certain  neighborhood.  In 

10  Laws  of  1894,  PP-  949>  1068;  Laws  of  1896,  p.  333,  etc. 
1T  Laws  of  1897,  p.  57;  Laws  of   1890,  extra  session,  p.  73. 
18  Annotated  Code  of  Iowa,   1897,  sees.  2084  et  seg. 
"Webb's  General  Statutes  of  Kansas,  1897,  chap.  48,  sees.  13  et  seq., 
and  chap.  70,  sec.  70  ;  cf.  ibid.,  chap.  37,  sec.  73. 

20  Revised  Laws  of  Louisiana,   1897,  P-  373  J  cf.  ibid.,  p.  374. 

21  Warth's  Code  of  West  Virginia,  3rd  ed.,   1891,  p.  284. 

22  Sanborn  and  Berryman's  Wisconsin  Statutes,   1898,   sees.  945-46. 

23  Code  of  Iowa,  sees.  885-86  ;  cf.   General  Statutes  of  Kansas,  chap. 
70,  sees.   107  et  seq. 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    249 

cities  of  Kansas  the  electors  may  sanction  an  appropriation 
of  money  which  shall  be  used  to  "  encourage  the  establish- 
ment of  manufactories  and  such  other  enterprises  as  may 
tend  to  improve  the  city  ",24  Recently  the  city  of  Wilming- 
ton, in  North  Carolina,  was  authorized  by  the  State  legislature 
to  hold  an  election  to  decide  whether  the  municipality  should 
borrow  the  sum  of  $150,000  "  to  be  given  as  an  encourage- 
ment to  new  manufacturing  enterprises  which  may  be  estab- 
lished within  the  limits  of  the  city,  or  enlargements  of  plants 
already  existing  ".  The  amount  in  this  way  granted  for  this 
use  was  to  be  placed  in  the  hands  of  the  members  of  a  specially 
constituted  board  of  trustees  to  be  distributed  for  the  best 
interests  of  the  city  to  individuals  and  firms  making  the 
necessary  guarantees.25 

Grants  to  private  companies  which  have  in  hand  the 
economic  development  of  a  district  in  respect  of  some  one 
particular  industry  are  also  not  unfamiliar.  Thus  the  peo- 
ple of  counties  or  cities  in  Kansas  may  vote  to  subscribe,  up 
to  certain  definitely  limited  amounts,  to  the  capital  stock 
of  companies  mining  or  boring  for  coal  or  natural  gas  or  con- 
structing artesian  wells.26  Townships  and  certain  classes  of 
cities  in  Kansas  may  extend  the  same  encouragement  to 
companies  engaged  in  "  the  manufacture  of  sugar  and  syrup 
out  of  sorghum  cane  in  their  respective  localities  ",  if  the 
electors  assent  to  the  expenditure.27 

Without  going  to  the  point  of  subscribing  to  the  stock  of 
an  industrial  company,  or  making  it  an  actual  cash  donation 
local  governments  encourage  business  enterprises  which 
promise  to  increase  the  wealth  and  prosperity  of  the  com- 
munity by  exempting  them  from  taxation.  Here  again  the 
people,  voting  in  the  referendum,  are  brought  forward  to 
decide  as  to  the  advisability  of  adopting  such  a  course.  For 
example,  I  may  refer  to  the  new  Constitution  of  South 

14  General  Statutes  of  Kansas,  chap.  37,  sec.  95. 
25  Laws  of  North  Carolina  of  1889,  p.  867. 
M  General  Statutes  of  Kansas,  chap  36,  sec.  5. 
"Ibid.,  chap.  152,  sees,  i  et  seq. 


250  THE  REFERENDUM  IN  AMERICA 

Carolina  which  says :  "  Cities  and  towns  may  exempt  from 
taxation  by  general  or  special  ordinance,  except  for  school 
purposes,  manufactories  established  within  their  limits  for 
five  successive  years  from  the  time  of  the  establishment  of 
such  manufactories :  Provided  that  such  ordinance  shall  be 
first  ratified  by  a  majority  of  such  qualified  electors  of  such 
city  or  town  as  shall  vote  at  an  election  held  for  that  pur- 
pose." 28  In  Rhode  Island  the  people  residing  in  towns 
and  cities  may  also  agree  to  exempt  "  manufacturing  prop- 
erty "  from  taxation,  the  exemption  in  that  State  continuing 
throughout  a  period  of  ten  years.29 

In  the  contest  between  municipal  and  private  ownership  of 
water  works,  lighting  plants  and  the  like  there  are  instances 
of  public  grants  to  private  companies,  but  here  we  at  once 
come  into  another  phase  of  the  development.  The  people 
are  introduced  into  the  system  again,  and  this  time  in  a  dif- 
ferent capacity,  not  to  decide,  as  before,  whether  private 
capital  which  promises  to  do  much  to  improve  the  condition 
of  a  neighborhood  shall  be  encouraged  to  settle  there,  but 
whether  private  capital  grown  strong  shall  be  given  control 
of  immensely  valuable  natural  monopolies.  The  people  were 
earlier  to  determine  whether  a  certain  amount  of  money 
should  be  expended  to  aid  a  struggling  enterprise;  now 
they  are  to  fix  upon  the  sum  which  the  company  controlling 
the  enterprise  shall  pay  in  aid  of  the  municipality.  The  situa- 
tion has  been  reversed  and,  still  not  trusting  their  representa- 
tives, who  in  many  cases  have  proven  that  they  were  open 
to  pernicious  and  most  dishonest  influences,  the  people  them- 

'M  Constitution  of  South  Carolina,  art.  viii,  sec.  8.  A  carpet  mill  was 
recently  established  in  Gaffney,  S.  C.  The  question  of  exempting  the 
factory  from  taxation  for  five  years  was  submitted  to  the  people  of  the 
town  on  February  17,  1899,  and  the  proposition  was  approved  by  a 
vote  of  273  to  29. 

29  General  Laws  of  Rhode  Island,  1896,  p.  177;  cf.  Local  Acts  of 
Michigan,  1891,  p.  50,  for  an  interesting  provision  of  this  kind  in  an 
act  incorporating  the  city  of  North  Muskegon.  Here  the  exemption 
was  to  include  taxes  for  both  city  and  school  purposes,  as  well  as  water 
rates  for  a  period  of  ten  years. 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    251 

selves  have  been  made  the  judges  of  the  subject.  Thus  it  is 
hoped  to  prevent  city  authorities  from  giving  away  valuable 
privileges  to  private  lighting  and  water  companies,  to  or- 
ganizations of  men  who  wish  to  use  the  streets  for  conveying 
passengers  on  the  payment  of  a  fee  and  for  laying  down  or 
stringing  wires  for  telegraph,  telephone  and  other  purposes. 
From  the  point  of  the  city  paying  a  private  company  to  set- 
tle within  its  limits,  to  the  point  of  the  company  making 
payments  to  the  city  for  business  advantages,  seems  rather  a 
long  step,  and  one  which  in  this  new  country  it  has  been  very 
difficult  to  take. 

Companies,  however,  have  found  the  exploitation  of  cer-. 
tain  lines  of  business  so  profitable  in  large  centres  of  popula- 
tion that  they  not  infrequently  can  spare  a  share  of  the  gain 
for  the  members  of  city  legislatures  in  return  for  favorable 
concessions.  This  abuse  has  recently  become  so  great  in  many 
parts  of  the  United  States  that  we  have  turned  helplessly  to 
the  referendum  as  a  means  of  securing  needed  relief.  Thus 
in  Iowa  we  meet  with  an  interesting  statutory  provision  which 
is  couched  in  the  following  terms :  "  No  franchise  shall  be 
granted,  renewed  or  extended  by  any  city  or  town  for  the 
use  of  its  streets,  highways,  avenues,  alleys  or  public  places 
for  any  of  the  purposes  named  in  the  preceding  section 
[telegraphs,  telephones  and  electric  street  railways]  unless  a 
majority  of  the  legal  electors  voting  thereon  vote  in  favor  of 
the  same  at  a  general  or  special  election."  30 

In  Nebraska  a  law.  relating  to  cities  of  the  "  metropolitan 
class  ",  i.  e.,  cities  containing  more  than  80,000  inhabitants, 
says :  "  No  new  franchise  shall  hereafter  be  granted,  nor 
any  extensions  of  franchises  heretofore  granted  be  lawful, 
unless  an  annuity  to  the  city  be  provided,  based  upon  either 
a  fixed  reasonable  amount  per  year  or  a  percentage  on  the 
gross  earnings  of  the  owners  of  said  franchise,  nor  until  a 
proposition  for  the  same  has  been  submitted  to  a  vote  of  the 
electors  of  the  city  at  a  general  city  election  or  a  special  city 
election  called  for  that  purpose,  and  to  carry  such  a  proposi- 

w  Code  of  Iowa,  sec,  776 ;  cf .  ibid.,  sec.  720. 


252  THE  REFERENDUM  IN  AMERICA. 

tion  it  shall  require  a  majority  of  the  electors  voting  at  sucn 
election."  31  In  any  city  or  village  in  Wisconsin  if  ten  per 
cent,  of  the  qualified  electors  sign  a  petition  in  favor  of  an 
election  on  the  subject,  the  question  whether  the  village 
board  or  city  council  shall  sell  the  street  railway,  lighting, 
telephone,  waterworks  or  other  rights  and  franchises  to  the 
highest  bidder  must  be  submitted  to  the  people.  In  the  event 
of  a  favorable  vote  in  the  referendum,  any  other  method  of 
disposing  of  these  franchises  than  by  competition  and  sale 
is  precluded.32  The  electors  of  any  city  or  village  having 
decided  to  sell  these  valuable  rights  may  later  revoke  their 
action  in  the  same  manner,  i.  e.,  by  petition  and  referen- 
dum.33 In  certain  cities  in  Missouri  the  council  may  itself 
grant  the  original  rights  to  private  companies,  but  these  are 
not  to  extend  over  a  longer  period  than  twenty  years,  and 
expiring,  they  are  not  to  be  renewed  without  the  consent  of 
the  people.34  The  Constitution  of  Nebraska  provides  that 
"  no  general  law  shall  be  passed  by  the  legislature  granting 
the  right  to  construct  and  operate  a  street  railway  within  any 
city,  town  or  incorporated  village  without  first  requiring  the 
consent  of  a  majority  of  the  electors  thereof  ",35  This  ref- 
erendum respecting  city  franchises  has  made  its  appearance 
among  us  very  recently,  but  it  seems  likely  to  have  rather 
extended  use  as  a  means  of  correcting  an  evil  of  wide  preva- 
lence and  of  real  magnitude. 

(2)  Another  large  class  of  referenda  in  local  communi- 
ties, separately  grouped  for  convenience'  sake,  includes  such 
as  relate  to  the  expenditure  of  public  moneys,  not  in  aid  of 
or  in  alliance  with  private  enterprise,  but  by  the  government 
itself  for  its  own  general  or  special  purposes  in  the  exercise 
of  its  original  powers.  A  government  in  its  corporate  and 
fiduciary  capacity  may  issue  bonds  against  the  public  credit 
and  sell  them  in  the  money  markets;  it  may  contract  a  tem- 

81  Compiled  Statutes  of  Nebraska,  sec.  754 ;  cf.  ibid.,  sec.  4036. 

83  Wisconsin  Statutes,   1898,  sec.  94oj.         33  Ibid. 

84  Laws  of  Missouri,   1891,  p.  60. 

88  Article  on  Miscellaneous  Corporations,  sec.  2. 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    253 

porary  loan  to  be  repaid  out  of  current  revenues ;  it  may  make 
a  direct  appropriation,  if  it  has  money  in  hand  in  the  treas- 
ury; and  again  it  may  levy  taxes  which  in  the  usual  case 
is  a  government's  principal  source  of  income.  The  peo- 
ple of  local  communities  are  called  upon  by  law  to  approve 
or  disapprove  of  all  these  transactions  under  varying  con- 
ditions in  the  various  States.  They  are  often  asked  more- 
over to  give  their  opinion  upon  the  plain  proposition  for 
which  the  expenditure  is  to  be  made,  whether  it  be  the  pur- 
chase of  waterworks,  the  erection  of  a  county  courthouse  or 
the  improvement  of  a  road.  To  the  discretion  of  the  repre- 
sentative boards  or  legislatures  then  is  left  the  whole  problem 
of  providing  the  means  to  carry  forward  the  specific  work 
which  the  people  have  authorized.  Sometimes  the  people 
vote  twice  or  thrice  on  what  is  essentially  the  same  proposi- 
tion, first  to  engage  in  the  undertaking,  secondly,  to  incur 
the  debt  necessary  to  execute  it,  and  thirdly,  to  levy  the  tax 
to  take  care  of  the  debt.  So  far  as  we  are  concerned  here,  it  is 
no  matter  in  what  manner  the  financial  obligation  is  incurred 
by  the  local  government ;  the  principle  is  the  same  in  all  these 
cases  and  it  will  be  our  object  in  this  place  to  keep  in  view 
simply  the  one  fact — the  purpose  for  which  the  money  is  to 
be  expended. 

Very  usual  is  the  submission  of  propositions  which  involve 
an  outlay  by  the  local  governments  for  the  erection  of  build- 
ings for  county,  city  or  other  public  purposes  and  the  pur- 
chase of  sites  for  these  structures.  In  the  first  place  there 
are  buildings  which  are  used  by  the  local  government  in  its 
exercise  of  the  police  power  and  the  administration  of  jus- 
tice, as  court  houses  and  "  town  halls  ",  jails,  workhouses 
and  houses  of  correction.  Thus  when  bonds  are  to  be  issued 
"  to  build,  repair  or  remodel  courthouses,  clerks'  offices,  jails 
and  other  public  buildings  in  the  several  counties  of  Kentucky 
or  to  provide  for  the  building,  repairing  or  remodeling  of  the 
same  ",  there  is  a  referendum.36  Again  in  Iowa  "  the  board 

88  Barbour  and  Carroll's  Kentucky  Statutes,  1894,  sees.  1872  et  seq. 


254  THE  REFERENDUM  IN  AMERICA 

of  supervisors  of  a  county  may  not  order  the  erection  of  a 
courthouse,  jail,  poorhouse  or  other  building  or  bridge  when 
the  probable  cost  will  exceed  $5,000,  nor  the  purchase  of  real 
estate  for  county  purposes  exceeding  $2,000  in  value  until  a 
proposition  therefor  shall  have  been  first  submitted  to  the 
legal  voters  of  the  county,  and  voted  for  by  a  majority  of  all 
persons  voting  for  and  against  such  proposition  at  a  gen- 
eral or  special  election  ".37  In  townships  in  Iowa  the  follow- 
ing question  is  submitted  to  the  people :  "  Shall  the  proposi- 
tion to  levy  a  tax  for  the  erection  of  a  public  hall  be 
adopted  ?"  38  In  Minnesota  the  council  of  any  city,  borough 
or  village  with  a  population  not  exceeding  10,000  may  sub- 
mit the  question  of  erecting  a  "  city  hall,  market  house,  en- 
gine house,  city  offices  or  city  prison  ",39  Likewise  in  Ohio 
two  or  more  counties,  the  proposal  having  first  been  approved 
by  the  electors  of  the  same,  may  unite  to  erect  and  main- 
tain for  their  joint  use  a  workhouse  in  which  to  utilize  the 
labor  of  public  misdemeanants.40  This  referendum  in  regard 
to  "  workhouses  "  also  exists  in  counties  in  other  States.41  In 
certain  counties  in  Georgia  the  people  may  decide  whether 
a  "  reformatory  prison  "  shall  be  established  at  the  public  ex- 
pense for  the  purpose  of  taking  care  of  misdemeanants  under 
sixteen  years  of  age.42  "  Houses  of  correction  "  with  the 
same  humane  end  in  view  are  the  subject  of  a  plebiscite  in  the 
counties  of  Arkansas.43 

With  a  beneficent  interest  in  the  welfare  of  the  people,  and 

87  Annotated  Code  of  Iowa.  1897,  sec.  423;  cf.  Webb's  Statutes  of 
Kansas,  1897,  chap.  27,  sees.  17-18;  Revised  Statutes  of  Florida,  1892, 
p.  275  ;  Revised  Codes  of  North  Dakota,  1895,  sec.  1923  ;  Session  Laws 
of  Minnesota,  1895,  pp.  693,  699;  Constitution  of  Colorado,  art.  xi,  sec. 
6 ;  Constitution  of  Missouri,  art.  x,  sec.  2 ;  Constitution  of  Michigan, 
art.  x,  sec.  9 ;  Revised  Statutes  of  Missouri,  1889,  P-  278. 

38  Code  of  Iowa,  sec.  567;  cf.  Revised  Statutes  of  Ohio,  7th  ed.,  1896, 
sec.  1479- 

30  Statutes  of  Minnesota,   1894,  sec.   1435. 

40  Revised  Statutes  of  Ohio,  sec.  21073. 

41  Cf.   Kentucky  Statutes,   1894,   sec.  4879;   Minnesota  Statutes,   1894, 
sec.   1987. 

42  Code  of  Georgia,  1896,  Vol.  Ill,  sees.  1192  et  seq. 

48  Digest  of  the  Statutes  of  Arkansas,  1894,  pp.  382  et  seq. 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    255 

with  the  object  of  protecting  the  incapable  and  the  unfortu- 
nate, the  local  governments  take  charge  of  the  poor.  In 
certain  communities  in  some  States  expenditure  on  this 
account  is,  however,  conditional  upon  the  direct  assent  of  the 
citizens.  Thus  "  poor  farms  ",  "  poor  houses  "  and  "  poor 
asylums  "  are  acquired  and  established  by  the  local  govern- 
ments by  way  of  the  referendum  44  and  the  taxpayers  them- 
selves decide  whether  they  desire  to  expend  so  much  money 
as  will  be  required  to  maintain  this  branch  of  the  administra- 
tion. In  Ohio  "  children's  homes  "  may  be  established  in 
counties  in  the  same  manner.  These  institutions  are  intended 
to  serve  as  asylums  for  orphans  or  children  for  whose  sup- 
port parents  have  failed  to  provide.45  By  an  act  passed  by  the 
legislature  of  Illinois  in  1891  cities  are  authorized  to  estab- 
lish and  maintain  "  non-sectarian  public  hospitals  "  to  be  sup- 
ported by  an  annual  tax  which  is  to  be  turned  into  a  "  hos- 
pital fund  ".  This  tax  is  n^t  to  be  collected  in  any  city  of 
the  State,  however,  until  the  people  of  that  city  have  first 
given  their  consent  to  the  levy.46  The  purchase  of  land  for 
the  sites  of  public  hospitals  is  contingent  on  the  popular  assent 
in  certain  cities  of  Nebraska,47  and  the  erection  of  market 
houses  in  cities  and  towns  is  a  subject  which  in  other  States 
is  sometimes  referred  to  popular  vote.48 

In  the  exercise  of  the  local  governmental  function  of  guard- 
ing life  and  property  from  destruction  by  fire,  questions  in 
relation  to  the  expenditure  of  public  money  are  often  sub- 
mitted to  the  people.  In  many  American  cities  there  are 
"  volunteer  "  fire  departments  which  find  their  support  in  the 
same  sentiments  that  induce  private  individuals  to  maintain 

44  Cf.  Statutes  of  Minnesota,  1894,  sec.  1987;  Webb's  General  Statutes 
of  Kansas,  1897,  chap.  46,  sees,  i  et  scq. ;  General  Statutes  of  New 
Jersey,  1896,  p.  2522  ;  Revised  Codes  of  North  Dakota,  1895,  sec.  1495. 

43  Revised  Statutes  of  Ohio,  sec.  929;  cf.  ibid.,  sec.  7821. 

41  Starr  and  Curtis'  Annotated  Statutes,  p.  823  ;  cf.  Session  Laws  of 
Tennessee,  1897,  p.  606;  Acts  of  Idaho,  1890-91,  p.  53. 

41  Compiled  Statutes   of  Nebraska,    1897,   sec.    1048. 

48  Statutes  of  Minnesota,  1894,  sec.  1435;  Laws  of  Maryland,  1893, 
P-  450. 


256  THE  REFERENDUM  IN  AMERICA 

free  hospitals  and  schools,  and  to  raise  military  companies 
for  the  common  defence.  In  the  more  populous  cities  pro- 
tection from  fire  tends  all  the  while  to  become  a  public  func- 
tion and  "  paid  fire  departments  "  are  organized  as  an  in- 
tegral part  of.  the  municipal  system  receiving  their  support 
from  the  public  treasuries.  In  New  Jersey,  for  instance,  the 
people  of  cities  may  determine  by  a  plebiscite  whether  they 
will  adopt  the  paid  fire  department  system  and  abandon  the 
volunteer  service.49  In  New  Jersey,  too,  the  people  of  in- 
corporated towns  may  vote  upon  the  question  of  the  purchase 
of  steam  fire  engines.50  The  legislature  of  Maryland  recently 
authorized  the  officers  of  a  town  to  submit  the  proposition 
of  expending  public  money  for  the  erection  of  a  "  hose 
house  " ; B1  in  another  town  to  consult  the  people  in  reference 
to  making  a  "  fire  improvement  loan "  which  was  to  be 
"  applied  and  used  exclusively  for  the  construction  of  a  fire 
alarm  system  ".52  In  Pennsylvania  boroughs  the  local  officers 
may  submit  the  question  of  levying  a  tax  and  expending  the 
proceeds  for  the  purchase  of  "  hose  for  fire  engine  companies 
as  may  be  required  to  furnish  the  said  boroughs  with  a  suf- 
ficient supply  of  water  for  the  extinguishment  of  fires  "  and 
for  the  erection  of  "  fire  plugs  or  hydrants  ",53 

Again,  the  local  governments  have  developed  a  function  of 
providing  water  and  light,  and  in  other  ways  the  needs  of  the 
people  are  supplied  through  the  public  corporation  instead  of 
by  private  enterprise.  Public  ownership  and  control  of  these 
businesses  in  cities  are  undertaken  with  the  object  of  supply- 
ing the  necessities  of  the  inhabitants  at  a  reasonable  price, 
and  safeguarding  them  from  abuses  too  likely  to  develop 
from  a  system  which  permits  private  companies  to  operate 
freely  in  this  field.  To  take  over  water  works,  pumps,  mains, 
gas  or  electric  lighting  plants  from  private  companies  or  to 

"General  Statutes  of  New  Jersey,  p.  1504. 

50  Ibid.,  p.  1481;  cf.  ibid.,  p.  1528,  and  Acts  of  Idaho,  1890-91,  p.  53. 

61  Laws  of  Maryland,   1890,  p.   309. 

"Laws  of   1894,  p.   72. 

58  Brightly's  Purdon's  Digest,  p.  241. 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    257 

construct  these  newly  requires  a  large  expenditure  of  money, 
and  when  such  a  step  is  contemplated  the  electors  are  very 
often  asked  to  decide  as  to  the  advisability  of  engaging  upon 
so  important  and  responsible  a  task.  In  many  States  there 
are  laws  providing  for  referenda  in  cities,  boroughs  and 
towns  on  these  subjects.  One  of  the  most  thoroughgoing 
may  be  instanced,  and  this  occurs  in  Iowa  where  cities  and 
towns  are  authorized  "  to  purchase,  establish,  erect,  main- 
tain and  operate,  within  or  without  the  corporate  limits, 
waterworks,  gasworks,  or  electric  light  or  electric  power 
plants  with  all  the  necessary  reservoirs,  mains,  filters,  streams, 
trenches,  pipes,  drains,  poles,  wires,  burners,  machinery,  ap- 
paratus and  other  requisites ".  But  "  no  such  works  or 
plants  shall  be  authorized,  established,  erected  or  purchased, 
leased  or  sold  unless  a  majority  of  the  legal  electors  voting 
thereon  vote  in  favor  of  the  same  at  a  general  or  special 
election  ",54  The  new  Constitution  of  South  Carolina  says : 
"  Cities  and  towns  may  acquire  by  construction  or  purchase, 
and  may  operate,  waterworks  systems  and  plants  for  fur- 
nishing lights,  and  may  furnish  water  and  lights  to  individ- 
uals, firms  and  private  corporations  for  reasonable  com- 
pensation; provided  that  no  such  construction  or  purchase 
shall  be  made  except  upon  a  majority  vote  of  the  electors 
in  said  cities  or  towns  who  are  qualified  to  vote  on  the  bonded 
indebtedness  in  said  cities  or  towns."  55 

The  construction  of  sewers  and  drainage  systems  in  cities 
and  towns  is  also  a  subject  that  is  sometimes  referred  to  popu- 
lar vote.  As  necessary  as  such  sanitary  arrangements  would 
seem  to  be,  the  installation  of  a  suitable  sewerage  system  is, 


64  Annotated  Code  of  Iowa,  sec.  720. 

55  Art.  viii,  sec.  5.  For  similar  provisions  respecting  waterworks  or 
lighting  plants  compare  Starr  and  Curtis'  Annotated  Statutes  of  Illinois, 
p.  869;  Session  Laws  of  Pa.,  1885,  p.  163;  ibid.,  1891,  p.  90;  Mills' 
Annotated  Statutes  of  Colorado,  Supplement,  1897,  p.  1144;  Laws  of 
Connecticut,  1893,  p.  380;  Acts  of  Idaho,  1890-91,  p.  53;  Supplement  to 
the  Public  Statutes  of  Massachusetts,  1889-95,  P-  484;  Annotated  Code 
of  Mississippi,  1892,  sees.  2948  and  3014,  and  many  others. 


258  THE  REFERENDUM  IN  AMERICA 

in  some  cases,  made  to  depend  upon  the  contingency  of  a 
favorable  vote  of  the  taxpayers.56 

There  are  very  many  instances  which  might  be  cited  to 
illustrate  the  part  the  people  play  in  voting  money  to  increase 
the  fertility  and  cultivability  of  the  soil,  to  improve  the 
methods  of  public  communication  over  roads  and  other  high- 
ways, to  facilitate  navigation  and  to  assist  in  the  economic 
development  of  neighborhoods.  The  people  vote  in  special 
"  irrigation  districts  "  and  other  local  entities  for  or  against 
taxation  and  the  expenditure  of  money  to  improve  arid  lands. 
They  vote  to  drain  swampy  lands,  and  to  construct  embank- 
ments and  levees  so  that  rivers  may  not  overflow,  doing 
damage,  during  freshets,  to  the  surrounding  country.57  In 
Texas  a  tax  for  the  construction  of  sea  walls  and  breakwaters 
is  the  subject  of  a  referendum.  The  Constitution  of  that 
State  says :  "  All  counties  and  cities  bordering  on  the  coast 
of  the  Gulf  of  Mexico  are  hereby  authorized  upon  a  vote 
of  two-thirds  of  the  taxpayers  therein  (to  be  ascertained  as 
may  be  provided  by  law)  to  levy  and  collect  such  tax  for 
construction  of  sea  walls,  breakwaters  or  sanitary  purposes 
as  may  be  authorized  by  law,  and  may  create  a  debt  for  such 
works  and  issue  bonds  in  evidence  thereof."  58 

The  construction  of  roads,  streets,  bridges  and  pavements 
and  the  improvement  and  repair  of  the  same  are  subjects  upon 
which  the  people  often  vote  in  local  districts.  This  refer- 
endum appears  in  a  great  variety  of  forms.  We  find  that  in 
Illinois,  for  instance,  fifty  land  owners  in  any  township  : 
have  an  election  called  on  the  question  of  levying  a  tax  n< 
to  exceed  $i  on  each  $100  of  the  assessed  valuation  of  al 

68  Code  of  Mississippi,  1892,  sec.  3014;  General  Statutes  of  New  Jer- 
sey, p.  207;  Acts  of  Idaho,  1890-91,  p.  53. 

57  Cf.  Acts  of  California,  1891,  p.  147;  Laws  of  Idaho,  1895,  pp. 
et  seq.;  Webb's  General  Statutes  of  Kansas,  chap.  79,  sees.  71  et  seq.; 
Barbour  and  Carroll's  Kentucky  Statutes,  sec.  2414;  Wolff's  Revisec 
Laws  of  Louisiana,  1897,  p.  375;  ibid.,  p.  718;  Code  of  Mississippi,  sec. 
3014;  Session  Laws  of  South  Dakota,  1897,  P>  219  ',  Shannon's  Annotated 
Code  of  Tennessee,  1896,  sees.  3856  et  seq. 

cs  Constitution  of  Texas,  art.  xi,  sec.  7. 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    259 

the  taxable  property  in  the  township  for  the  purpose  "  of  con- 
structing and  maintaining  gravel,  rock,  macadam  or  other 
hard  roads  ".59  Roads  may  be  improved  in  the  same  way  in 
local  districts  in  Indiana  60  and  in  Kentucky.61  In  Minnesota 
the  citizens  with  their  own  consent  may  be  taxed  for  the 
construction  of  roads  to  be  used  for  "  steam  traction  trans- 
portation ",62  In  Michigan  the  board  of  supervisors  of  any 
county  may  authorize  a  township,  "  to  borrow  or  raise  by  tax 
upon  such  township  any  sum  of  money  not  exceeding  $1,000 
in  any  township  in  any  one  year  to  build  or  repair  any  roads 
or  bridges  in  such  township  "  if  the  assent  of  the  people  shall 
first  be  obtained.63  In  States  in  which  the  privi- 
lege of  managing  turnpikes  has  been  granted  away  to 
private  companies  the  citizens  may  decide  whether  the  local 
governments  shall  take  control  of  the  highways,  abolishing 
the  toll  houses  which  have  become  a  source  of  annoyance  to 
travellers.  The  question  of  "  free  turnpikes  "  is  submitted  to 
popular  vote  in  the  counties  of  Kentucky,64  Ohio 65  and 
Indiana.66 

Similarly  the  people  of  local  districts  may  decide  whether 
public  funds  shall  be  expended  for  the  erection  or  purchase 
of  bridges.  At  an  earlier  day  rivers,  if  sufficiently  shallow, 
were  forded ;  if  deeper,  wagons  were  usually  carried  over  by 
ferry.  These  primitive  devices  were  followed  by  the  private 
bridge  for  the  use  of  which  the  owners  charged  the  traveller 
a  fee.  Later  it  came  to  be  a  question  for  the  citizens  to  de- 
termine whether  the  community  should  not  own  and  control 
ic  bridges.  In  several  States  the  people  vote  to  tax  them- 
selves or  to  issue  bonds  for  this  purpose,  as  in  Kentucky, 
Michigan  and  Kansas.67  In  North  Carolina  there  is  the 

59  Starr  and  Curtis'  Annotated  Illinois  Statutes,  p.  3599. 

00  Homer's  Indiana  Statutes,  1896,  sete.  5114000. 

61  Barbour  and  Carroll's  Kentucky  Statutes,  sees.  4742  et  seq. 

82  Statutes  of  Minnesota,    1894,  sees.    1934  et  seq. 

63  Howell's  Annotated  Statutes  of  Michigan,   1882,  p.  202. 

04  Laws  of  Kentucky,    1896,  p.   39. 

65  Revised  Statutes  of  Ohio,  sec.  4934. 

00  Homer's  Indiana  Statutes,  sec.   5107. 

67  Cf.  Webb's  General  Statutes  of  Kansas,  chap.  44,  sees.  9  and  24; 


260  THE  REFERENDUM  IN  AMERICA 

case  of  the  people  being  called  upon  to  decide  whether  bridges 
which  were  free  shall  be  converted  again  into  toll  bridges.  It 
was  believed  that  the  cost  of  keeping  two  certain  bridges  in  a 
county  in  good  repair  was  burdensome  to  the  taxpayers, 
whereupon  the  question  of  re-establishing  toll  houses  was 
submitted  to  popular  vote.68  In  many  cities  and  towns  the 
people  are  directly  consulted  in  regard  to  the  construction  of 
streets  and  boulevards.69  The  creation  of  indebtedness  for 
the  building  or  maintenance  of  "  board  walks  along  the  sea- 
front  "  in  cities  located  on  or  near  the  Atlantic  Ocean,  in  the 
State  of  New  Jersey,  is  a  subject  for  a  poll  of  the  people.70 
Water  courses  and  the  channels  of  streams  are  sometimes 
deepened  with  the  aim  of  improving  navigation  when  the 
people  declare  their  willingness  to  bear  this  additional  ex- 
pense.71 

A  park  within  a  city  in  the  strict  sense  is  not  a  necessity, 
especially  among  a  people  who  are  still  in  a  very  utilitarian 
stage  of  civilization.  There  is  a  disposition  to-day  even  in 
some  very  large  American  cities  to  leave  it  to  private  bene- 
factors to  establish  and  maintain  public  pleasure  parks.  In 
the  cities  of  many  States,  however,  the  taxpayers  may  decide 
whether  such  an  expenditure  shall  be  made  on  the  common 
account.72 

As  a  means  of  beautifying  the  city,  as  a  public  health 
measure  and  for  other  reasons  which  are  good  and  sufficient, 

ibid.,  chap  45,  sec.   i  ;  ibid.,  chap.  46,  sec.   i ;   Kentucky  Statutes,  sees. 

1862    et   seq. ;    Michigan's   Annotated   Statutes,   p.    202;    ibid.,   p.    406; 

Indiana  Statutes,  sees.  288ob.  et  seq.,  and  many  others. 

08  Public  Laws  of   1893,  p.   139. 

69  Cf.  Code  of  Mississippi,  sec.  3014  ;  General  Statutes  of  New  Jersey, 
pp.  2150  and  2156;  Acts  of  Idaho,   1890-91,  p.  53;   Laws  of  Colorado, 
1893,  PP-  462-63. 

70  Laws  of  New  Jersey,  1896,  p.  71. 
ffl  Cf.  Code  of  Iowa,  sec.  799. 

72  Cf.  Laws  of  Colorado,  1893,  PP-  462-63;  Acts  of  Idaho,  1890-91,  p. 
53;  Starr  and  Curtis'  Annotated  Statutes  of  Illinois,  p.  852;  Code  of 
Iowa,  sec.  860  ;  Webb's  General  Statutes  of  Kansas,  chap.  42,  sees.  57 
et  seq.;  Kentucky  Statutes,  sec.  2854;  Compiled  Statutes  of  Nebraska, 
1897,  sec.  1009;  General  Statutes  of  New  Jersey,  pp.  2613  and  2618; 
Acts  of  West  Virginia,  1893,  p.  m. 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    261 

the  city  and  other  local  districts  sometimes  purchase  land  for 
cemeteries.  Thus  in  townships  in  Kansas  and  Ohio  the  ques- 
tion of  selling  bonds  and  investing  the  proceeds  in  ceme- 
teries is  submitted  to  popular  vote.73  In  the  cities  and  towns 
of  Idaho  there  is  the  same  referendum.74  In  Minnesota  in 
towns,  cities,  villages  and  boroughs  the  people  may  vote  to  dis- 
inter bodies  in  abandoned  cemeteries,  to  move  and  reset  the 
tombstones  in  new  grounds  and  then  improve  the  old  ceme- 
tery lands  as  public  parks.75  In  a  local  district  in  Ohio  the 
people  were  recently  polled  to  determine  whether  certain 
graveyards,  earlier  under  private  control,  should  be  trans- 
ferred to  the  trustees  of  a  township.76 

Public  money  is  also  expended  in  a  variety  of  ways  with 
the  object  of  advancing  the  general  economic  development  of 
a  community,  but  in  a  number  of  instances  the  popular  assent 
to  the  grant  which  many  of  the  taxpayers  may  possibly  re- 
gard as  an  extravagance,  must  first  be  obtained.  Thus  in  any 
city  of  the  first  class,  in  Kansas,  the  people  may  authorize  a 
bond  issue  to  an  amount  not  exceeding  $20,000  for  the  pur- 
pose of  prospecting  for  coal  within  the  city  limits.77  The 
question  of  the  issue  of  bonds  in  like  amount  to  defray  the 
cost  of  boring  or  prospecting  for  coal  may  be  submitted  to 
popular  vote  in  the  counties  of  Nebraska.78  In  any  county 
of  the  State  of  Washington  on  the  receipt  of  a  petition  signed 
by  twenty  taxpayers  the  county  commissioners  must  submit 
the  question  of  making  a  public  appropriation  "  for  the  pur- 
pose of  boring  or  drilling  into  the  earth  for  valuable  minerals 
such  as  coal,  oil,  gas,  salt  or  any  other  valuable  subterranean 
production  that  is  supposed  to  exist  in  quantities  sufficient  to 
justify  boring  for".79  The  citizens  of  counties  or  townships 

78  Webb's  General  Statutes  of  Kansas,  chap.  42,  sees.  57  et  seq. ;  Re~ 
vised  Statutes  of  Ohio,  7th  ed.,  sec.  1465. 

74  Acts  of  Idaho,   1890-91,  p.  53;  cf.  Laws  of  West  Virginia,  1893,  P« 
iii.         75  Laws  of  Minnesota,  1897,  p.  23. 
70  Laws  of  Ohio,   1896,  p.  736. 

77  Webb's  General  Statutes,  chap.   36,  sees,   i   et  seq. 
7?  Compiled  Statutes  of  Nebraska,  sec.  2272. 

79  Code  of  Washington,    1896,   sec.   2456. 


262  THE  REFERENDUM  IN  AMERICA 

in  Kansas  may  vote  to  assess  and  collect  a  "  fire  tax  "  which 
shall  be  used  "  to  prevent  the  incursion  of  prairie  fires  "  by 
"  breaking,  plowing,  mowing  or  any  other  necessary  method, 
burning  strips  at  intervals ",  etc.80  In  the  townships  of 
Minnesota  the  people  may  determine  "  to  build  and  main- 
tain a  fence  at  or  near  the  township  line  for  the  purpose  of 
preventing  the  spreading  of  Russian  thistles  over  the  lands 
of  the  township  ",81  and  in  the  same  State  the  people  may 
curiously  vote  to  tax  themselves  to  an  amount  not  exceeding 
five  mills  on  each  dollar  of  assessed  valuation  "  to  pay  for  the 
destruction  of  grasshoppers  and  their  eggs  ",82 

In  Ohio  if  a  "  county  agricultural  society  "  and  the  com- 
missioners of  any  county  are  of  opinion  that  the  interests  of 
the  society  and  the  county  demand  an  appropriation  from  the 
public  treasury  for  the  purchase  and  improvement  of  the 
county  fair  grounds  the  question  may  be  submitted  to  popular 
vote.83  There  is  a  referendum  on  the  same  subject  in  the 
counties  of  Kansas.84  A  law  of  1897  authorized  the  people  of 
counties  in  Nebraska  to  vote  upon  the  question  of  appropriat- 
ing money  to  an  inter-state  exposition.85  In  several  States 
the  people  in  their  local  communities  determine  whether  pre- 
miums shall  be  paid  from  the  common  treasury  for  the  de- 
struction of  various  species  of  noxious  wild  animals.  In 
counties  in  Nebraska  the  people  may  vote  "  For  Bounties  "  or 
"  Against  Bounties  ",  and  if  bounties  are  approved  of  any 
person  presenting  the  scalps  "  with  the  two  ears  and  face 
down  to  the  nose  "  to  the  proper  officials,  with  his  oath  that 
the  animals  were  killed  within  the  county  where  the  pre- 
mium is  applied  for,  will  receive  $3  for  each  wolf  or  mountain 
lion  and  $i  for  each  wild  cat  or  coyote  so  killed.  Any 
county  desiring  to  be  released  from  the  obligation  of  making 

*°  Webb's  General  Statutes  of  Kansas,  chap.   170,  sees,    i   et  seq. 

81  Laws  of  Minnesota,   1895,  p.  633. 

"Statutes  of  Minnesota,  1894,  sees.  7885-86. 

88  Revised  Statutes  of  Ohio,  sec.  3703. 

14  Webb's  General  Statutes,  chap.  174,  sees,  i  et  seq. 

83  Compiled  Statutes  of  Nebraska,  sec.  23033. 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    263 

these  payments  may  later  revoke  its  action  by  popular 
vote.86 

By  a  law  which  passed  the  legislature  of  Kansas  in  1871 
the  question  of  paying  a  bounty  in  counties  to  encourage  the 
growing  of  hedges  was  submitted  to  popular  vote.  If  the 
proposition  were  approved  in  any  county  in  which  the  sub- 
mission was  made  an  annual  payment  from  the  county  treas- 
ury of  $2  for  every  forty  rods  of  "  osage  orange  or  hawthorn 
fence  "  was  authorized,  for  a  period  of  eight  years,  to  the 
person  "  successfully  growing  and  cultivating  the  same  ".8T 
This  law  was  repealed  in  1883. 88  In  1891  the  Nebraska 
legislature  passed  an  act  authorizing  the  officers  of  any 
county,  if  the  proposition  were  approved  by  the  people  at  a 
special  election,  to  issue  and  sell  its  bonds  to  an  amount  not 
exceeding  $20,000,  the  proceeds  to  be  used  "  for  the  purpose 
of  raising  money  to  purchase  grain  to  be  planted  and  sown 
in  order  to  raise  crops  for  the  year  1891  and  for  feeding 
teams  used  in  raising  said  crops  ".89  This  interesting  bit  of 
socialistic  legislation  was  induced  by  a  serious  drought  which 
it  was  claimed  had  left  many  farmers  without  the  means  to 
put  their  crops  in  the  ground  for  the  next  harvest.  The 
legislature  had  earlier  made  an  unconditional  appropriation 
from  the  State  treasury  of  $100,000  for  the  relief  of  distress 
arising  from  the  same  cause.90  In  Kansas,  by  an  act  passed 
in  1875,  counties  were  in  the  same  way  empowered  to  bond 
themselves  to  an  amount  varying  from  $5,000  to  $20,000  each 

:ording  to  their  population  and  their  presumable  ability  to 
iar  the  burden.  These  bonds  were  to  be  known  as  "  relief 
bonds  "  and  the  funds  secured  in  this  manner,  in  each  county 
rhich  voted  at  a  referendum  in  favor  of  the  outlay,  were  to 

used  for  the  purpose  of  supplying  the  destitute  with  wheat, 

83  Compiled  Statutes  of   Nebraska,   sec.   472 ;    cf.    Howell's  Annotated 
Statutes  of  Michigan,  sec.  2259.  for  a  poll  of  the  people  in  townships  on 
ic  payment  of  bounties  for  the  destniction  of  wolves  and  panthers. 
81  Session  Laws  of  Kansas,   1871,  p.  211    (chap.  91). 
83  Ibid.,  1883,  chap.   112. 

83  Session  Laws  of  Nebraska,   1891,  p.  310   (chap.  41). 
90  Ibid.,  p.  302    (chap.  39). 


264 


THE  REFERENDUM  IN  AMERICA 


corn,  oats  and  potatoes.91  This  too  was  a  measure  induced 
by  a  drought  and  it  was  meant  to  assist  the  poor  in  respect 
of  the  next  harvest.92 

In  at  least  two  States,  Pennsylvania  and  West  Virginia,  a 
very  odd  system  is  employed.  Sheep  farmers  are  compen- 
sated by  way  of  the  referendum  for  injury  inflicted  upon 
their  flocks  by  dogs.  By  a  law  of  1878  in  Pennsylvania  the 
owners  of  dogs  were  annually  assessed  and  taxed  fifty  cents 
for  each  male  dog  and  one  dollar  for  each  female  dog.  The 
sum  thus  collected  in  each  county  was  to  go  into  a  "  sheep 
fund  "  from  which  payments  were  to  be  made  from  time  to 
time  to  flock-masters  to  indemnify  them  for  losses  traceable 
to  dogs.  The  amount  in  damages  due  any  claimant  was  to  be 
established  by  appraisers  regularly  appointed  to  this  task. 
The  surplus  remaining  in  the  county  treasury  after  payment 
of  all  necessary  sums  was  to  be  made  over  to  the  school 
treasurers  of  the  various  school  districts  into  which  the 
county  was  divided.  The  tax  was  not  to  be  levied  in  any 
county,  however,  until  the  electors  had  voted  "  For  the  Sheep 
Law  "  or  "  Against  the  Sheep  Law  ",  and  a  majority  of  them 
had  accepted  the  provisions  of  the  act.  To  avoid  the  too 
frequent  recurrence  of  elections  the  people  were  to  be  polled 
on  this  subject  not  oftener  than  once  in  two  years.93  Dogs 
are  taxed  in  the  same  way  in  West  Virginia,  the  proceeds 
being  set  aside  as  a  fund  from  which  damages  will  be  paid  to 
the  owners  of  sheep  whose  flocks  have  suffered  from  this 
cause.  In  forty-six  counties  of  the  State  the  taking  effect 
of  the  act  is  made  conditional  upon  a  favorable  vote  of  the 
people  at  an  election  "  For  the  Dog  Tax  "  or  "  Against  the 
Dog  Tax  ".  The  law  when  it  has  once  come  into  opera- 
tion in  any  county  may  be  repealed  as  it  was  originally  adopted 
by  popular  vote.94 

There  are  not  a  few  instances  in  which  the  erection  of 

9]  General  Statutes  of  Kansas,  1889,  sees.  1860  et  seq. 

93  Cf.  State  ex  rel.  v.  Osawkee  Twp.,   14  Kan.  418. 
M  Session  Laws   of   Pa.,    1878,  p.    198. 

94  Code  of  West  Virginia,  3rd  ed.,  1891,  p.  600. 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    265 

monuments  to  soldiers,  naval  or  military  heroes  and  other 
eminent  men  is  made  the  subject  of  a  referendum.  Thus 
in  Iowa,  when  a  petition  which  has  been  signed  by  "  a  ma- 
jority of  the  members  of  the  Grand  Army  posts  "  within  any 
county  is  presented  to  the  board  of  supervisors  of  that  county, 
the  proposition  to  levy  a  tax  to  aid  in  "  the  erection  of  a  sol- 
diers' and  sailors'  monument  or  memorial  hall  "  must  be  sub- 
mitted to  popular  vote.95  In  counties  in  Ohio  when  suf- 
ficient money  has  not  been  privately  subscribed  for  the  erec- 
tion of  a  monument  "  in  memory  of  those  who  died  or  were 
killed  during  the  war  of  1861  "  a  referendum  may  be  taken 
on  the  question  of  collecting  a  county  tax  for  this  purpose.96 
In  Wisconsin,  upon  a  favorable  vote  of  the  people,  any 
county  board  may  appropriate  a  sum  not  exceeding  $10,000 
for  a  monument  or  other  memorial  to  the  soldiers  of  the  Civil 
War,97  and  any  town,  city  or  village  in  Wisconsin  may,  by 
popular  vote,  determine  "  to  erect  a  suitable  monument  or 
memorial  building  to  the  memory  of  any  such  residents 
thereof  as  may  have  lost  their  lives  in  the  military  or  naval 
service  of  the  State  or  United  States,  or  in  rendering  great 
State  or  national  service  or  in  consequence  of  any  such  serv- 
ice ",98  By  a  law  of  1896  the  people  of  certain  cities  in  Ohio 
may  vote  a  tax  for  the  erection  of  a  monument  to  General 
Anthony  Wayne.99  In  the  same  State  a  county  tax  may  be 
laid,  by  way  of  a  plebiscite,  for  a  "  soldiers'  library  and 
armory  building  "  for  the  use  of  "  posts  of  the  Grand  Army 
of  the  Republic  and  kindred  and  auxiliary  organizations  ".10° 
By  a  law  of  1869  in  New  York  the  legislature  extended  the 
right  to  "  the  electors  of  any  town  at  any  regular  town  meet- 
ing or  of  any  county  at  any  regular  election  to  vote  any  sums 
of  money  to  be  designated  by  a  majority  of  all  the  electors 
voting  at  such  town  meeting  or  election  for  the  purpose  of 

85  Code  of  Iowa,  1897,  sec.  435.      M  Revised  Statutes  of  Ohio,  860.893. 

9T  Sanborn   and   Berryman's   Wisconsin  Statutes,   sec.   670. 

88  Ibid.,  sec.  937- 

93  Session  Laws  of  Ohio,   1896,  p.  651;  cf.  ibid.,  p.  718. 

100  Ibid.,  p.  700. 


266  THE  REFERENDUM  IN  AMERICA 

erecting  a  public  monument  within  such  town,  or  for  the 
county  as  the  case  may  be,  in  memory  of  the  soldiers  of  such 
town  or  county  or  in  commemoration  of  any  public  person 
or  event  ",101 

In  some  States  the  people  in  their  local  communities  may 
determine  whether  they  shall  pay  their  "  road  tax  "  in  money 
or  in  labor.  To  "  work  out  "  the  tax  is  a  privilege  upon 
which  a  high  value  is  placed  in  many  rural  communities,  since 
it  enables  the  farmers  who  have  few  resources  besides  their 
tools  and  implements,  their  teams  and  their  own  muscular 
strength  to  escape  a  money  payment.  The  repairs  to  the 
highways  are  made  at  a  season  of  the  year  when  the  popula- 
tion is  not  otherwise  busily  engaged  and,  under  the  direction 
of  a  locally  designated  officer,  large  parties  of  men  who  are 
thus  "  working  out "  their  tax  may  be  met  at  certain  periods 
along  the  American  countryside.  That  the  service  rendered 
by  a  force  of  men  recruited  in  this  way  is  in  the  nature  of  the 
case  quite  poor  and  ineffective  is  not  a  conclusive  argument 
in  favor  of  the  abandonment  of  the  system  in  many  parts 
of  our  democracy.  If  the  system  is  to  be  abandoned  the  tax- 
payers ask  that  they  shall  at  least  be  consulted  in  regard  to 
the  change,  a  right  that  they  have  won  in  Illinois,102  Wiscon- 
sin,103 and  Michigan,104 

A  rather  peculiar  referendum  is  met  with  in  North  Caro- 
lina. When  convicts  are  employed  in  work  on  the  public 
roads  they  must  be  fed  and  maintained  in  some  manner.  In 
a  North  Carolina  county  the  citizens  were  lately  asked  to 
decide  whether  a  tax  should  be  laid  for  the  benefit  of  a  fund 
to  be  used  "  for  the  support  of  convicts  and  prisoners  and 
persons  owing  otherwise  non-collectible  fines  "  while  thus 
engaged  on  the  roads  in  the  public  service.105 

In  the  exercise  of  its  benevolent  task  of  caring  for  the  poor 

101  Session  Laws  of  New  York,  1869,  p.  2056,  chap.  855. 

102  Starr  and  Curtis'  Annotated  Statutes  of  Illinois,  p.  3586. 

103  Sanborn  and  Berryman's  Wisconsin  Statutes,  sec.  776. 

104  Howell's  Annotated  Statutes  of  Michigan,  p.  398. 

105  Public  Laws  of  North  Carolina,   1895,  P-  35°- 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    267 

the  local  governments  sometimes  tax  the  citizens  for  the  pur- 
chase of  a  hearse  and  the  erection  of  a  vault  in  order  that 
no  one  may  be  without  suitable  burial.  The  proposition  that 
a  tax  shall  be  levied  for  either  or  both  of  these  purposes  is 
submitted  to  popular  vote  in  townships  and  villages  in 
Ohio.106 

A  question  which  is  referred  to  the  people  of  local  districts 
in  Ohio  with  curious  frequency  is  deserving  of  special  re- 
mark. This  concerns  the  payment  of  the  claims  of  officers 
and  magistrates,  holding  positions  of  local  trust,  who  have  lost 
the  public  money  by  investing  it  in  unsound  banks  and  who 
have  been  obliged  to  make  up  the  amount  themselves,  or  their 
sureties  for  them,  in  order  to  indemnify  the  public  treasury. 
For  instance  a  township  treasurer,  one  Alpheus  Wilson,  had 
placed  $1,642.77  in  a  bank  which  afterward  failed.  When 
the  affairs  of  the  institution  were  wound  up  it  was  found  that 
it  could  pay  to  its  creditors  only  80  per  cent,  of  the  amount 
due  them.  There  was  thus  a  deficit  in  the  accounts  of  Wilson 
amounting  to  $328.55.  The  State  legislature  was  unwilling 
to  relieve  the  treasurer  and  his  sureties  on  its  own  responsi- 
bility, but  declared  that  this  would  be  done  in  case  a  majority 
of  the  electors  of  the  township  voting  on  the  subject  should 
agree  to  the  peculiar  proposition.  The  people  voted  then 
"  For  the  relief  of  Alpheus  Wilson — yes  "  or  "  For  the  relief 
of  Alpheus  Wilson— no  ",107 

In  the  same  year  a  still  more  curious  case  of  this  kind 
made  its  appearance  in  Ohio.  This  was  a  proposal  for  the 
reimbursement  of  a  supervisor  of  highways,  one  Rodney 
Prentis,  who  while  in  office,  it  was  said,  had  caused  "  certain 
parties  to  be  arrested  for  leaving  dead  animals  unburied  near 
the  highway  to  the  annoyance  and  discomfort  of  the  public 
and  the  detriment  of  the  public  health  ".  Later  on  one  of 
the  "  parties  "  in  question  had  instituted  a  suit  at  law  in  a 
county  court  against  Prentis  "  for  alleged  malicious  prosecu- 
tion whereby  said  Prentis  was  put  to  a  great  expense  in  de- 

1100  Revised  Statutes  of  Ohio,  sees.   1485  et  scq.,  2556. 
107  Laws  of  Ohio,  1896,  p.  456. 


268  THE  REFERENDUM  IN  AMERICA 

fending  said  cause,  and  while  said  action  finally  terminated 
in  favor  of  said  Prentis,  he  was,  by  reason  of  the  insolvency 
of  the  plaintiff,  compelled  to  pay  a  large  amount  of  costs  in 
addition  to  attorney  fees  to  his  counsel  ".  The  people  then 
were  to  be  polled  at  a  township  election  to  find  out  whether 
they  would  pay  a  sum  not  to  exceed  $400  "  to  reimburse  the 
Rodney  Prentis  estate  ".108  In  another  case  a  referendum 
was  taken  in  a  township  in  Ohio  for  the  reimbursement  of  a 
firm  of  builders  and  contractors  who  were  alleged  to  have 
sustained  a  loss  of  $500  in  the  construction  of  a  school 
house.109  In  1896  alone  the  legislature  of  Ohio  appears  to 
have  passed  no  less  than  twelve  of  these  conditional  laws  for 
the  relief  or  reimbursement  of  local  officers,  or  individuals, 
or  firms.  This  is  all  a  singular  commentary  on  the  foresight 
and  talent  of  local  financiers  who  seem  not  to  be  able  to 
adjust  matters  of  this  kind  without  appeals  to  the  State  legis- 
lature, or  else  it  is  an  odd  feature  of  the  American  system 
of  party  government  devised  by  the  politicians  in  or'der  that 
they  may  keep  in  the  good  graces  of  their  lieutenants  in  rural 
constituencies,  which  is  much  more  likely  to  be  the  true  ex- 
planation of  the  phenomenon. 

The  referendum  is  also  employed  quite  frequently  in  ad- 
justing the  salaries  of  city  and  other  local  officers,  and  ii 
granting  pensions  to  members  of  the  civil  service.  Thus  in 
Colorado  "  in  cities  and  towns  of  not  more  than  5,000  in- 
habitants, incorporated  under  the  territorial  laws  of  Colorado 
or  by  special  charter,  the  mayor  and  aldermen,  or  the  trus- 
tees in  places  having  such  officers,  shall  not  receive  am 
compensation  for  services  rendered  by  them  as  such  mayor, 
aldermen  or  trustees,  unless  the  question  of  paying  sucl 
mayor,  aldermen  or  trustees  for  their  services  shall  first 
submitted  to  the  legal  voters  of  such  city  or  town,  and  unle< 
a  majority  of  those  voting  thereon  shall  vote  in  fav( 

108  Laws  of  Ohio,   1896,  p.  673. 

™J  Ibid.,  p.  533;  cf.  Local  Acts  of  Michigan,  1891,  p.  865;  ibid., 
P-   579- 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    269 

thereof  ".110  The  question  of  increasing  the  salary  of  the 
Mayor  of  Hagerstown,  in  Maryland,  was  recently  submitted 
to  a  vote  of  the  people  of  that  city.111  In  New  Jersey  there 
are  a  number  of  conditional  acts  of  this  kind.  One  refers 
to  the  people  of  cities  the  question  of  creating  a  new  office, 
president  of  the  "  board  of  aldermen,  common  council  or 
council  "  who  is  to  receive  in  salary  half  as  much  as  the  mayor 
of  the  same  city;112  others,  the  question  of  increasing  the 
compensation  of  employees  of  the  fire  department ; 113  others 
of  increasing  the  pay  of  persons  engaged  in  the  city  police 
service.114  In  New  Jersey,  too,  the  people  of  cities  may  de- 
termine whether  pensions  shall  be  granted  to  police  officers 
and  policemen  who  have  reached  a  certain  age  and  have  been 
in  the  service  of  the  city  for  a  period  of  twenty  years.115  In 
the  cities  of  Missouri  the  people  may  decide  whether  or  not 
pensions  shall  be  paid  to  policemen  who  may  have  sustained 
injuries  while  on  public  duty.116  In  any  town  in  the  State  of 
New  York  teachers  who  have  taught  continuously  in  the 
public  schools  for  a  period  of  twenty-five  years  or  more  may 
receive  monthly  payments  from  a  pension  fund,  if  the  tax- 
payers of  the  town  shall  vote  in  favor  of  making  them  such 
compensation.117 

An  annual  budget  to  take  the  place  of  the  great  number  of 
separate  appropriation  bills,  putting  science  and  system  into 
a  field  where  only  disorder  has  reigned  hitherto,  is  gradually 
making  headway  in  the  local  governmental  practice  of  the 
different  States.  Where  this  reform  has  been  introduced  the 
referendum  is  often  applied  as  a  kind  of  penalty  on  all  appro- 
priation bills  which  the  council  or  board  of  government  has 
neglected  to  include  in  the  general  budget.  Thus  in  North 

10  Mills'  Annotated  Statutes  of  Colorado,  1891,  sec.  4537. 

11  Session  Laws  of  Maryland,  1894,  p.  151. 

12  General  Statutes  of  New  Jersey,  p.  500. 

13  Ibid.,  pp.    1506,    1519,    1524,    1558. 

14  Ibid.,  pp.  1536,  1537,   1543,   1545,  1557-        ™  Ibid.,  p.   1537. 

116  Session  Laws  of  Missouri,   1895,  p.  236. 

117  Banks  and   Brothers'   Revised  Statutes  of  New  York,   9th  ed.,  p. 
3089. 


270  THE  REFERENDUM  IN  AMERICA 

Dakota,  with  respect  to  cities,  it  is  provided  that  there  shall 
be  an  "  annual  appropriation  bill  "  covering  all  necessary  sub- 
jects, and  that  "  no  further  appropriations  shall  be  made  at 
any  other  time  within  such  fiscal  year  unless  the  proposition 
to  make  each  appropriation  has  been  first  sanctioned  by  a  ma- 
jority of  the  legal  voters  of  such  city  either  by  a  petition 
signed  by  them  or  at  a  general  or  special  election  duly  called 
for  that  purpose  ",118  Similar  provisions  occur  in  the 
statutes  of  South  Dakota,119  Nebraska,120  Illinois,121  and 
Michigan.122  An  interesting  exception  to  the  general  pro- 
hibition is  met  with  in  Illinois  where  upon  a  two-thirds  vote 
of  the  council  or  legislative  board  in  any  city  or  village  an 
appropriation  bill  may  be  passed  definitively  and  without  a 
poll  of  the  people,  if  the  money  which  it  carries  with  it  is  in- 
tended for  improvements  rendered  necessary  by  a  "  casualty 
or  accident  happening  after  such  annual  appropriation  is 
made  ",123 

In  the  school  administration  a  prolific  field  is  afforded  for 
the  development  of  the  referendum.  The  progress  which  has 
been  made  in  introducing  the  people  as  direct  agents  in  legis- 
lation, in  the  specially  organized  school  districts  and  other 
local  governmental  subdivisions  with  which  the  responsibility 
for  public  education  rests,  is  very  noteworthy.  At  a  very 
early  time,  it  having  been  recognized  that  gratuitous  school- 
ing of  the  masses  the  cost  of  which  was  to  be  borne  by  the 
taxpayers,  was  a  rather  unusual  exercise  of  public  power, 
the  people  were  asked  to  declare  whether  they  were  in  favor 
of  such  an  extension  of  local  functions.  And  from  the  be- 
ginning onward  in  the  erection  of  new  school  buildings, 
the  introduction  of  new  equipment  and  new  and  higher 
courses,  the  increase  of  the  length  of  the  school  term  and 
other  proposals  which  are  made  from  time  to  time  to  improve 
the  public  school  system,  involving  as  they  all  do  a  free  ex- 

118  Revised  Codes  of  North  Dakota,  sec.  2262. 

119  Laws  of   1890,  p.  89.        ™  Compiled  Statutes,  p.   196. 

321  Starr  and  Curtis'  Statutes,  p.  726.        122  Local  Acts  of  1891,  p.  134. 
123  Starr   and   Curtis'   Statutes,  p.   726. 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    271 

penditure  of  public  money,  the  taxpayers  are  called  upon  to 
give  their  assent  before  fresh  financial  obligations  are  in- 
curred. Thus  as  early  as  in  1825,  when  it  was  a  question  of 
establishing  a  general  system  of  free  primary  schools  in  Mary- 
land, the  local  option  principle  was  made  use  of.  The  electors 
of  each  county  of  the  State  when  they  next  voted  for  delegates 
to  the  General  Assembly  were  to  declare  (it  would  appear 
viva  voce)  whether  they  were  for  or  against  the  establish- 
ment of  these  schools.  The  act  was  to  become  operative  only 
in  counties  in  which  a  majority  of  the  votes  cast  on  the  propo- 
sition were  in  favor  of  the  schools ;  in  other  counties  remain- 
ing void  and  of  no  effect.124 

Likewise  in  Pennsylvania  by  an  act,  passed  by  the  State  leg- 
islature in  1836,  "  to  consolidate  and  amend  the  several  acts 
relative  to  a  general  system  of  education  by  common  schools  " 
every  township,  borough  or  ward  in  the  State  was  constituted 
a  separate  "  school  district ",  the  officers  of  which  could  tax 
the  inhabitants  and  exercise  other  functions.  In  each  district, 
each  year  until  a  favorable  majority  should  be  secured  for  the 
proposition,  the  citizens  were  to  deposit  their  ballots  marked 
"  Schools  "  or  "  No  Schools  "  in  the  boxes  at  the  polling 
booths.  In  districts  in  which  the  proposition  had  been  de- 

124  Laws  of  Maryland  for  1825,  chap.  162,  "An  act  to  provide  for  the 
public  instruction  of  youth  in  primary  schools  throughout  this  State  ". 
The  last  two  sections  of  the  act  were  as  follows  :  "  Sec.  29,  Be  it  en- 
acted that  at  the  next  election  of  delegates  to  the  General  Assembly 
every  voter,  when  he  offers  to  vote,  shall  be  required  by  the  judges  of 
election  to  state  whether  he  is  for  or  against  the  establishment  of  primary 
schools  and  the  said  judges  shall  record  the  number  of  votes  for  and 
against  primary  schools  and  make  return  thereof  to  the  legislature  dur- 
ing the  first  week  of  the  session  and  if  a  majority  of  the  said  votes  in 
any  county  shall  be  in  favor  of  the  establishment  of  primary  schools, 
as  is  therein  provided  for,  then  and  in  that  case  the  said  act  shall 
be  valid  for  such  county  or  counties,  otherwise  of  no  effect  whatever. 

"  Sec.  30.  And  be  it.  enacted  that  if  a  majority  of  the  votes  of  any 
county  in  this  State  shall  be  against  the  establishment  of  primary 
schools  as  established  by  this  act  then  and  in  that  case  the  said  act 
shall  be  void  as  to  that  county.'1'  This  law  led  to  one  of  the  most  im- 
portant of  the  early  judicial  opinions  on  "  local  option  "  measures.  Cf. 
Burgess  v.  Pue,  2  Gill.  n. 


272  THE  REFERENDUM  IN  AMERICA 

feated,  the  people  might  vote  on  it  again  a  year  later.  Dis- 
tricts which  in  any  year  should  adopt  it  could  retrace  their 
steps  and  discontinue  the  system  upon  a  vote  of  the  people  in 
1837  and  every  third  year  thereafter.  Where  the  people  had 
declined  to  assume  the  increased  obligations  children  whose 
parents  could  not  afford  to  educate  them  privately  were  still, 
however,  at  this  comparatively  late  period  in  the  State's  his- 
tory not  brought  up  in  total  ignorance,  but  were  sent  to  school 
under  a  more  economical  system  in  obedience  to  the  terms  of 
"  an  act  to  provide  for  the  education  of  the  poor  gratis  ",125 
Nevertheless  such  a  law  gave  to  those  children  who  availed 
themselves  of  this  opportunity  to  obtain  a  free  schooling,  a 
rather  opprobrious  position  in  the  community  as  paupers  and 
dependents,  and  was  far  from  being  a  general  system  of  public 
education  which  the  law  of  1837  contemplated  and  which  has 
since  been  the  outgrowth  of  these  modest  beginnings.126 

126  Cf.  Acts  of  Assembly  of  Pa.,  1808-9,  chap.  114;  Acts  of  Assembly, 
1855-36,  p.  525,  sec.  16. 

120  The  law  of  1836  in  Pennsylvania  which  is  to  be  found  in  P'a.  Acts 
of  Assembly  of  that  year,  No.  166,  p.  525,  sec.  13,  says:  "The  school 
directors  of  every  school  district  which  shall  not  have  adopted  the 
common  school  system  shall  annually  call  a  meeting  of  the  qualified 
citizens  of  the  district  on  the  day  of  election  for  directors  to  be  held 
at  the  usual  place  of  holding  township,  ward  or  borough  elections  by 
at  least  six  advertisements  put  up  in  the  most  public  places  in  the  dis- 
trict for  the  space  of  two  weeks ;  and  the  said  meeting  shall  be  organ- 
ized between  the  hours  of  one  and  four  o'clock  P.  M.  on  the  said  day, 
by  appointing  a  President  and  the  secretary  of  the  board  of  directors, 
or  in  his  absence  some  other  member  of  the  board  shall  perform  the 
duties  of  secretary  to  the  meeting ;  when  the  meeting  is  so  organized 
the  question  of  establishing  the  common  school  system  in  the  district 
shall  be  decided  by  ballot  and  the  said  president  and  secretary  shall 
perform  the  duties  of  tellers  to  the  meeting  and  shall  receive  from 
every  person  residing  within  the  district  qualified  to  vote  at  the  gen- 
eral election  a  written  or  printed  ticket  containing  the  word  '  Schools  ' 
or  the  words  '  No  Schools  '  and  shall  continue  without  interruption  or 
adjournment  until  the  electors  who  shall  come  to  the  said  election  shall 
have  opportunity  to  give  in  their  respective  votes  and  the  said  tellers 
shall  count  the  votes  and  if  a  majority  shall  contain  the  word 
'  Schools  '  the  secretary  shall  certify  the  same  to  the  board  of  directors 
of  the  district  who  shall  proceed  to  establish  schools  therein  agreeably 
to  the  provisions  of  this  act,  but  if  a  majority  shall  contain  the  words 
*  No  Schools  '  the  secretary  shall  certify  the  same  to  the  county  com- 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    273 

This  referendum  with  respect  to  school  taxes  made  its  ap- 
pearance at  about  the  same  time  in  other  States  of  the  Union. 
The  "  Free  School  Law  "  which  was  submitted  to  the  people 
of  the  State  by  the  legislature  of  New  York  in  1849,  leading 
to  that  notable  judicial  opinion  in  Barto  v.  Himrod,127  fur- 
nishes additional  evidence  that  public  expenditure  on  account 
of  the  public  schools  was  early  regarded  as  a  suitable  subject 
for  a  popular  vote. 

Throughout  all  the  later  stages  of  the  development  of  our 
system  of  public  education  into  its  present  form  the  people 
have  continued  to  figure  extensively  as  a  law-making  agency. 
There  is  a  polling  of  the  citizens  of  local  districts  in  reference 
to  the  collection  of  taxes  which  are  to  be  used  to  supplement 
the  appropriations  for  general  school  purposes  received  from 
the  treasury  of  the  State.  Thus  in  Arkansas  a  plebiscite  is 
taken  in  school  districts  at  the  instance  of  the  county  court  to 
determine  what  rate,  not  in  excess  of  five  mills  on  the  dollar, 
shall  be  levied  "  for  the  support  and  maintenance  of  public 
schools  ".  This  tax  would  appear  to  be  in  benefit  of  a  local 
fund  for  general  school  purposes,  and  is  not  to  be  allocated  to 
any  special  line  of  educational  work.  If  the  people  should 
refuse  to  vote  this  money  to  the  school  administration  it  is  to 
be  presumed  that  public  schools  would  still  exist  within  the 
district,  though  their  efficiency  would  not  be  so  great.128  A 

missioners  of  the  proper  county ;  and  the  school  directors  of  every 
school  district  which  may  have  adopted  the  common  school  system 
may,  if  they  deem  it  expedient,  call  a  meeting  of  the  qualified  citi- 
zens of  the  district  on  the  first  Tuesday  in  May  in  the  year  1837  and 
on  the  same  day  in  every  third  year  thereafter,  to  be  held  at  the  usual 
place  of  holding  township,  ward  or  borough  elections,  at  which  time 
and  place  an  election  shall  be  held  to  decide  by  ballot  whether  the 
common  school  system  shall  be  continued  or  not;  the  notice  for  hold- 
ing said  elections  to  be  in  conformity  with  the  preceding  part  of  this 
section  ;  and  should  there  be  a  majority  of  the  taxable  inhabitants  of 
said  district  in  favor  of  '  No  Schools  '  the  secretary  shall  certify  the 
same  to  the  county  commissioners  of  the  proper  county  and  the  opera- 
tion of  the  common  school  system  shall  be  suspended  in  said  district 
until  such  time  as  a  majority  of  the  citizens  shall  otherwise  decide." 

127  4  Seld.  483- 

128  Sandels  and  Hill's  Digest  of  the  Statutes  of  Arkansas,   1894,  sec. 
6416;   cf.  Constitution  of  Arkansas,  art.  xiv,  sec.  3. 


274  THE  REFERENDUM  IN  AMERICA 

supplementary  tax  for  school  purposes  may  be  voted  by  the 
people  of  local  districts  in  Georgia.129  In  Florida,  Texas, 
West  Virginia,  Kentucky  and  Missouri  there  are  local  elec- 
tions on  the  subject  of  levying  taxes  which  are  to  supplement 
the  appropriations  from  the  State  school  fund  and  place 
larger  sums  at  the  disposal  of  school  officers  with  a  view  to 
raising  the  standards  of  instruction  and  increasing  the  effi- 
ciency of  this  branch  of  the  public  administration.130 

It  will  be  noted  by  all  who  will  stop  to  examine  into  this 
suEject  that  a  poll  of  the  people  in  regard  to  school  levies, 
with  its  attendant  uncertainties,  still  finds  favor  to-day  only  in 
those  sections  where  the  common  school  system  has  not  yet 
been  established  on  very  firm  foundations.  Where  the  pov- 
erty of  the  people  and  their  general  heedlessness  in  regard  to 
education  is  so  great  that  the  State  legislature  hesitates  to  lay 
the  tax  definitively  and  fix  upon  its  amount,  the  referendum 
is  an  institution  whose  intrinsic  value  will  not  greatly  impress 
any  competent  student  of  political  forms.  It  is  here  a  mere 
device  by  which  the  representatives  of  the  people  in  a  democ-- 
racy  are  enabled  to  escape  their  just  share  of  responsibility. 

Furthermore  there  are  referenda  with  specific  ends  in  view 
respecting  the  public  school  administration,  as  for  instance,  on 
the  subject  of  the  purchase  of  land  upon  which  to  erect  school 
buildings,  the  construction  of  these  buildings  and  the  equip- 
ment of  the  same.131  As  the  charges  on  school  account  are 

129  Code  of  Georgia,  1895,  sees.  1399  et  seq. ;  cf.  Constitution  of 
Georgia,  art.  viii,  sec.  4.  The  ballots  are  to  contain  the  words  "  For 
local  taxation  for  public  schools  "  or  "  Against  local  taxation  for  public 
schools  ". 

180  Constitution  of  Florida,  art.  xii,  sec.  10;  Constitution  of  Texas, 
art.  vii,  sec.  3;  Sayle's  Civil  Statutes  of  Texas,  1888,  art.  4253;  ibid., 
art.  3733  et  seq.;  supplement  to  Sayle's  Civil  Statures,  1888  to  1893, 
art.  3730;  ibid.,  37333.  et  seq.;  Code  of  West  Virginia,  3rd  ed.,  1891, 
p.  361;  Barbour  and  Carroll's  Kentucky  Statutes,  sees.  4457  et  seq.; 
Constitution  of  Missouri,  art.  x,  sec.  n. 

131  Sayles'  Civil  Statutes  of  Texas,  1888,  sec.  3733  ;  Laws  of  California, 
1891,  p.  264;  ibid.,  1893,  pp.  249,  263,  267;  Starr  and  Curtis'  Annotated 
Statutes  of  Illinois,  pp.  3689,  3692;  Code  of  Mississippi,  1892,  sec.  3014; 
Montana  Codes,  1895,  Vol.  I,  sees.  1940,  1962;  Constitution  of  Colo- 
rado, art.  xi,  sec.  7. 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    275 

in  some  measure  proportionate  to  the  number  of  months  in 
the  year  school  is  kept,  this  subject  in  many  communities 
is  also  left  to  the  decision  of  the  whole  electorate.  If  the  tax- 
payers desire  it  teachers  will  be  employed  for  a  longer  time 
and  the  pupils  can  therefore  be  given  a  more  thorough  train- 
ing at  the  public  expense.  With  increased  funds  the  stand- 
ards can  be  raised,  the  instruction  improved  and  the  results 
will  be  very  much  better  as  measured  by  the  mental  develop- 
ment of  the  children.  Although  such  a  subject,  in  common 
with  most  others  affecting  public  education,  would  seem  to 
be  one  which  the  people  en  masse  are  not  well  qualified  to 
deal  with,  they  are  often  called  in  to  say  yes  or  no  on  grave 
questions  of  this  character.  Pecuniary  considerations  in  local 
districts,  where  men  reside  to  whom  education  is  a  name,  in- 
stead of  an  experience,  are  likely  to  operate  actively  to  prevent 
the  development  of  an  enlightened  policy  in  regard  to  schools. 
For  instance,  in  West  Virginia  it  appears  that  the  legislature 
makes  it  compulsory  for  a  district  to  keep  school  during  only 
four  months  out  of  the  twelve.  On  the  initiation  of  the 
"  Board  of  Education  ",  or  on  the  petition  of  twenty  voters 
of  any  district,  the  question  of  extending  this  period  must  be 
submitted  to  popular  vote.  The  electors  who  favor  the  in- 
crease of  time  are  to  vote  "  For  months  school  ",  the 

number  desired  being  supplied,  and  those  opposed  to  the  ex- 
tension of  the  period  "  Against  more  than  four  months 
school  ",132  This  referendum  occurs  in  a  number  of  States. 
In  Illinois  it  is  not  lawful  in  any  township  "  for  a  board  of 
directors  to  levy  a  tax  to  extend  schools  beyond  nine  months 
without  a  vote  of  the  people  ".133 

With  the  development  of  the  public  school  system  the  idea 
has  gained  ground  that  text  books  should  be  supplied  free  of 
cost  to  the  pupils.  Since  this  policy  increases  the  expense 
of  administration  the  specific  question  of  free  text  books  is 

132  Code  of  West  Virginia,  1891,  p.  382;  cf.  Session  Laws  of  West 
Va.,  1897,  pp.  169,  172. 

183  Starr  and  Curtis'  Statutes  of  Illinois,  p.  3689 ;  cf.  Kentucky  Stat- 
utes, sees.  4457  et  seq. 


276  THE  REFERENDUM  IN  AMERICA 

sometimes  referred  to  the  electors  in  counties  and  school  dis- 
tricts, as  in  South  Dakota,134  Montana135  and  other  States. 

As  the  school  term  is  increased  in  length,  new  courses  be- 
ing added  and  the  standards  of  instruction  heightened,  the 
demand  arises  for  graded  schools.  Effective  results  were  not 
to  be  secured,  especially  in  cities  and  towns  where  there  are 
many  pupils  to  be  taught,  by  confining  all  the  children  in  one 
room  or  even  in  one  building  and  bringing  them  all  before  the 
same  teacher  or  teachers.  The  "  High  School "  soon  made 
its  appearance  in  our  public  educational  scheme.  In  cities 
it  now  exists  almost  everywhere  and  there  are  sometimes 
county  high  schools  and  township  high  schools,  which  are 
maintained  at  places  in  the  county  or  township  convenient  to 
the  students  who  are  entitled  to  receive  free  instruction  in 
rural  districts.  In  many  parts  of  the  country,  however,  it 
is  not  regarded  as  an  indispensable  feature  of  the  school  ad- 
ministration, and,  since  the  establishment  of  a  graded  system 
means  the  outlay  of  a  considerable  sum  of  money,  the  ques- 
tion is  submitted  to  popular  vote.  In  some  cases  townships 
and  other  local  districts,  which  could  not  separately  afford  so 
great  an  outlay,  unite  to  establish  and  maintain  high  schools. 
They  then  use  them  jointly.  The  local  referendum  in  respect 
of  high  schools  occurs  in  Iowa,136  California,137  West  Vir- 
ginia,138 Illinois,139  Kansas,140  Kentucky,141  Nevada,142  Wis- 
consin143 and  other  States. 

Similarly  in  the  establishment  of  schools  of  a  still  higher 
or  of  a  special  character  the  public  money  is  sometimes  ap- 

134  Session  Laws  of  1891,  p.  237. 

135  Session  Laws  of  1897,  p.  61. 

18^  Code  of  Iowa,   1897,  sec.  2728. 

137  Laws  of  California,  1891,  pp.  57,  182;  ibid.,  1893,  p.  268. 

™Code  of  West  Virginia,  p.  371. 

139  Starr   and   Curtis'   Statutes,   p.   3660. 

140  Webb's  General  Statutes  of  Kansas,  chap.  64,  sees,  i  et  seq. 

141  Kentucky  Statutes,  sec.  4464;  cf.  ibid.,  4487,  for  a  peculiar  plebis- 
cite   in    which    only    negroes    vote    on    the    question    of    establishing    a 
graded    school    for   colored    chldren. 

142  Statutes  of  Nevada,  1895,  p.  28. 

143  Sanborn   and   Berryman's  Statutes,    1898,   p.   384. 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    277 

propriated  subject  to  the  popular  approval.  The  Constitution 
of  Kentucky  says :  "  No  sum  shall  be  raised  or  collected  for 
education  other  than  in  common  schools  until  the  question  of 
taxation  is  submitted  to  the  legal  voters  and  the  majority  of 
the  votes  cast  at  said  election  shall  be  in  favor  of  such  taxa- 
tion ".144  In  Illinois,  in  such  counties  as  have  not  yet  taken 
up  township  organization,  the  question  of  founding  and  main- 
taining a  county  "  Normal  School  ",  in  which  to  educate  and 
fit  teachers  for  their  profession,  is  submitted  to  popular  vote. 
In  other  counties  in  Illinois  representative  officials  may  act 
upon  their  own  initiative  in  the  establishment  of  such 
schools.145  In  North  Carolina  by  a  law  of  1891,  elections 
were  authorized  in  cities  and  towns  in  respect  of  a  subscrip- 
tion of  money  to  a  newly  established  "  Normal  and  Industrial 
School  for  White  Girls  ",146  and  in  South  Carolina  similar 
subscriptions  might  be  made  on  authority  of  the  people  of 
counties,  cities  or  towns  in  benefit  of  a  branch  of  the  State 
University  to  be  known  as  "  The  Winthrop  Normal  and 
Industrial  College  of  South  Carolina  ",147 

Akin  to  this  referendum  on  school  questions  is  another  in 
respect  of  public  libraries.  The  free  library  as  a  government 
establishment  is  a  still  later  development  than  the  free  school. 
The  value  of  rooms  to  which  the  people  may  freely  go  in  order 
to  read,  and  of  loan  libraries,  from  which  they  may  take  out 
books  to  peruse  them  at  their  leisure  in  their  homes,  is  in  many 
communities  not  fully  understood.  Where  such  advantages 
are  appreciated  it  is  often  felt  that  it  may  be  left  to  private 
benefactors  to  supply  the  people  with  library  facilities.  As 
in  respect  of  universities  and  establishments  of  higher  learning 
when  private  donations  are  forthcoming  the  government  is 
disinclined  to  enlarge  its  sphere  and  add  to  its  obligations. 
In  many  communities  in  which  it  is  pretty  well  recognized  that 
a  public  library  would  be  a  desirable  thing  there  is  fear  that 

144  Constitution  of  Kentucky,  sec.   184. 

148  Starr  and  Curtis'  Statutes,  p.   3733. 

140  Session  Laws  of  North  Carolina,   1891,  p.   126. 

147  Revised  Statutes  of  South  Carolina,   1894,  Vol.  I,  p.  397. 


27  8  THE  REFERENDUM  IN  AMERICA 

the  taxpayers  would  not  care  to  be  charged  with  the  expense 
and  thus  in  cities,  towns,  townships  and  other  local  districts 
the  referendum  comes  into  play.  In  Illinois  when  a  petition 
which  bears  the  signatures  of  fifty  or  more  legal  voters  is 
presented  to  the  officers  of  any  incorporated  town,  village  or 
township  requesting  that  an  election  be  held  to  determine 
whether  a  tax  not  exceeding  two  mills  on  the  dollar  shall  be 
levied  therein  for  establishing  and  maintaining  a  free  public 
library  the  proposition  must  be  submitted  to  popular  vote.14* 
The  same  question  is  referred  to  the  people  of  local  districts 
in  many  other  States  as  in  Iowa,149  Kansas,150  Michigan,151 
Minnesota,152  Missouri,153  New  Jersey,154  New  York,155 
Ohio,156  and  Utah.157  In  New  York  the  people  of  local  dis- 
tricts may  vote  upon  the  question  of  appropriating  a  sum  of 
money  in  aid  of  private  libraries  on  the  condition  that  these 
libraries  shall  be  kept  open  for  the  public's  free  use.158 

"8  Starr  and  Curtis'  Statutes,  p.  2531. 

149  Code  of  Iowa,  sec.  727. 

«o  Webb's  Statutes,  chap.  39,  sec.  28,  and  chap.  42,  sec.  53. 

151  Howell's  Annotated  Statutes,  1882,  p.  1362. 

152  Statutes  of  Minnesota,   1894,  sec.   1425. 
158  Session  Laws,   1897,  p.  50. 

154  General  Statutes,   1896,  pp.    1950,    1953   and   1956. 

153  Banks  and  Brothers'  Revised  Statutes,  gth  ed.,  p.  1490. 

156  Revised  Statutes  of   Ohio,   sec.    1476. 

157  Laws  of  1896,  p.  144. 

u8Banks  and  Brothers'  Revised  Statutes,  p.  1490. 


CHAPTER  XI 

THE  LOCAL  REFERENDUM LOAN  BILLS  AND  FINANCIAL  PRO- 
POSALS— CONTINUED 

THERE  is  a  tendency  constantly  at  work  among  munici- 
palities and  other  local  governments  impelling  them  to  in- 
crease the  public  indebtedness  excessively.  With  a  view  to  the 
prevention  of  overissues  of  bonds,  extravagant  expenditures 
and  too  free  a  use  of  the  taxing  power,  the  constitutional  con- 
ventions, as  I  have  noted  already,  not  infrequently  take  the 
matter  in  hand.  Definite  limits  are  established  beyond  which 
local  governments  may  not  go  in  debt-making  and  these  pro- 
visions are  often  of  a  general  character  applying  to  all  forms 
of  indebtedness,  no  matter  what  the  specific  purpose  of  the 
loan.  As  a  method  of  applying  restraint  to  the  local  councils 
and  boards,  and  the  State  legislatures  as  well,  since  the  latter 
might  give  too  much  play  to  the  communities  in  this  particu- 
lar, we  have  gone  behind  these  agents  and  have  put  our  pro- 
hibitions in  the  constitutions.  One  of  the  most  thorough- 
going of  these  constitutional  provisions,  in  so  far  as  the  refer- 
endum has  been  employed  and  has  become  a  feature  of  the 
plan,  occurs  in  the  Constitution  of  North  Carolina.  This 
provision  is  as  follows :  "  No  county,  city,  town  or  other 
municipal  corporation  shall  contract  any  debt,  pledge  its  faith 
or  loan  its  credit,  nor  shall  any  tax  be  levied  or  collected  by 
any  officers  of  the  same,  except  for  the  necessary  expenses 
thereof,  unless  by  a  vote  of  the  majority  of  the  qualified 
electors  therein  "-1 

In  Colorado  no  city  or  town  may  make  a  loan  of  any  amount 
whatsoever  except  for  the  purpose  of  securing  a  suitable  water 
supply  for  the  citizens  until  the  proposition  shall  first  have 
been  approved  by  popular  vote.  The  aggregate  amount  of 

*Art.  vii,  sec.  7. 

279 


2So  THE  REFERENDUM  IN  AMERICA 

the  outstanding  debt  of  any  such  municipality  shall  never  ex- 
ceed a  sum  equal  to  three  per  cent,  of  the  assessed  valuation 
of  its  taxable  property.2  In  Louisiana,  likewise,  all  propo- 
sitions to  "  incur  debt  and  issue  negotiable  bonds  therefor  " 
must  be  submitted  to  popular  vote  and,  being  approved  by  the 
people,  loans  may  be  contracted  "  to  the  extent  of  one-tenth 
of  the  assessed  valuation  of  the  property  within  said  municipal 
corporation,  parish,  drainage  district ",  etc.3  In  West  Vir- 
ginia counties,  cities  and  other  local  districts  may  incur  in- 
debtedness with  the  approval  of  the  people,  but  in  no  case  may 
the  aggregate  amount  of  such  indebtedness  be  in  excess  of 
five  per  cent,  of  the  assessed  valuation  of  the  taxable  property 
in  these  districts.4 

In  some  States  the  provisions  on  this  subject  are  not  quite 
so  far-reaching.  Within  certain  limits  local  officers  may  con- 
tract debt  at  their  own  pleasure.  It  is  only  when  these  limits 
are  passed  that  the  referendum  is  employed.  Of  these  various 
provisions  the  most  usual  is  that  which  restricts  the  local 
governments  in  the  creation  of  debt  in  any  one  year  to  a  sum 
not  exceeding  "  the  income  and  revenue  for  that  year  ".  Ex- 
penditures or  loans  for  any  purpose  in  excess  of  this  amount 
are  made  illegal,  except  with  the  approval  of  the  people,  by 
the  Constitutions  of  six  States, — California,5  Utah,8  Ken- 
tucky,7 Idaho,8  Missouri,9  and  Wyoming.10  In  Pennsyl- 
vania the  debt  of  municipalities  and  other  local  districts  is 
definitely  limited  at  seven  per  cent,  of  the  assessed  valuation, 
in  special  cases  at  ten  per  cent.  Under  no  circumstances 
shall  the  debt  be  allowed  to  pass  this  limit,  and  every  propo- 
sition to  increase  it  to  a  point  beyond  two  per  cent,  of  the 
assessed  valuation  in  any  district  must  have  the  approval  of 
the  people.11  In  the  local  districts  of  Georgia  proposals  to 

*  Art.  xi,  sec.  8.        3  Constitution  of  Louisiana,  art.  281. 

4  Constitution  of  West  Virginia,   art.  x,   sec.  8;   cf.  Constitution  of 
South  Carolina,  art.  viii,  sec.  7. 
8  Art.  xi,  sec.  18.         8  Art.  xiv,  sec.  3. 
7  Sec.   157.        8Art.  viii,  sec.  3. 

*  Art.  x,  sec.  12.          w  Art.  xvi,  sec.  4. 

"  Constitution  of  Pennsylvania,  art.  ix,  sec.  8. 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    281 

create  a  debt  in  excess  of  one-fifth  of  one  per  cent.,  but  not 
higher  than  seven  per  cent,  (in  special  cases  ten  per  cent.) 
of  the  assessed  valuation  must  be  submitted  to  popular  vote  ;12 
in  the  State  of  Washington  beyond  one  and  a  half  per  cent, 
but  not  exceeding  five  per  cent,  (ten  per  cent,  in  special 
cases).13  In  Montana  "  no  county  shall  incur  any  indebted- 
ness or  liability  for  any  single  purpose  to  an  amount  exceed- 
ing $10,000  without  the  approval  of  a  majority  of  the  electors 
thereof  voting  at  an  election  to  be  provided  by  law  ",14 

In  West  Virginia  county  officers  are  put  under  restraint 
in  the  assessment  and  collection  of  taxes.  Except  for  a  few 
purposes  which  are  enumerated  in  the  Constitution,  taxes 
in  excess  of  95  cents  per  $100  of  valuation  in  any  one  year 
must  be  authorized  by  popular  vote.15  In  the  counties  of 
Illinois  the  limit  is  75  cents  per  $100  of  valuation  and  pro- 
posals for  a  higher  tax  rate  must  be  approved  by  the  people.16 
The  same  referendum  occurs  in  counties  in  Nebraska,  when 
it  is  a  question  of  making  the  rate  higher  than  $1.50  per  $100 
of  the  assessed  valuation.17 

The  loan  bill  and  bond  elections  are  very  familiar  in  cities 
and  other  local  political  districts  in  all  parts  of  the  United 
States.  While  the  people  are,  in  general,  a  rather  effective 
restraining  influence  upon  officers  who  might  otherwise  heap 
up  indebtedness  inordinately,  they  are  not  a  certain  safe- 
guard. They  have  a  habit  of  forgetting  one  year  what  loans 
they  have  authorized  the  year  before,  and  are  in  no  sense  well 
fitted  to  judge  when  a  community's  bonded  debt  is  overstep- 
ping the  limit  which  prudent  financiers  would  establish  for  it. 
A  city's  population,  its  resources  and  its  ability  to  meet  its 
obligations  conveniently  are  not  far  from  fixed  quantities. 
That  the  people  know  nothing  of  all  this  need  not  be  said. 
They  do  not  know  how  much  debt  has  been  voted  before,  what 

12  Constitution  of  Georgia,  art.  vii,  sec.  7. 

18  Constitution  of  Washington,  art.  viii,  sec.  6. 
"  Constitution  of  Montana,  art.  xiii,  sec.  5. 

15  Constitution  of  West  Virginia,  art.  x,  sec.  7. 

19  Constitution  of  Illinois,  art.  ix,  sec.  8. 
"Constitution  of  Nebraska,  art.  ix,  sec.  5. 


282  THE  REFERENDUM  IN  AMERICA 

provision  has  been  made  for  meeting  it  as  it  falls  due,  or  how 
much  in  safety  the  district  could  properly  carry.  The  consti- 
tutional conventions  recognize  this  fact  in  a  general  way  when 
they  fix  definite  limits  to  the  debt  as,  for  instance,  five  per 
cent,  or  seven  per  cent,  of  the  assessed  valuation. 

When  the  voters  of  a  city  are  asked  to  assent  to  a  loan  of 
one,  or  five,  or  twelve  million  dollars,  they  in  the  best  case 
consider  how  it  is  to  be  expended,  as  for  instance,  for  free 
libraries,  new  streets  or  an  improved  water  supply.  If  they 
individually  feel  the  need  of  these  improvements  and  have 
reason  to  think  that  their  lot  will  be  made  more  happy  thereby 
they  are  very  likely  to  vote  for  the  loan.  Often  no  considera- 
tions as  good  as  these  are  at  hand.  At  a  recent  election  on 
the  question  of  borrowing  a  large  sum  of  money  in  Phila- 
delphia, to  be  applied  to  improvements  in  different  parts  of 
the  city,  purely  local  and  selfish  considerations  made  them- 
selves felt.  Those  parts  of  the  city  which  were  to  be  directly 
benefited  by  the  loan  returned  large  majorities  for  it  while 
in  other  sections  it  was  viewed  with  curious  indifference. 
Not  a  few  electors  who,  upon  being  asked  how  they  had  voted 
on  the  proposition,  explained  in  all  seriousness  that  they  had 
cast  their  ballots  in  favor  of  the  bill  because  they  believed  it 
would  put  more  money  in  circulation  and  give  the  poor  a 
chance  to  secure  some  of  it.  The  professional  politicians  are 
usually  to  be  found  on  the  side  of  a  loan  bill  for  they  know 
that  whenever  a  large  sum  of  money  is  to  be  paid  out  by  the 
city,  for  no  matter  what  purpose,  there  will  be  opportunities 
for  them  and  their  friends  to  enrich  themselves  at  the  public 
expense. 

However,  one  rather  important  distinction  must  be  noted. 
While  the  average  voter  cares  very  little  whether  his  city  has 
a  debt  of  $10,000,000  or  $100,000,000,  since  he  does  not  ag- 
gravate himself  with  a  thought  of  how  it  is  eventually  to  be 
paid,  he  as  a  rule  approaches  a  proposition  to  increase  the  tax 
rate  in  a  very  different  frame  of  mind.  It  is  of  course  true 
that  every  loan  means  a  heavier  burden  of  taxation,  if  not  at 
once,  at  some  future  time.  The  postponement  of  the  evil  day 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    283 

is  however  very  seductive  to  the  taxpayer.  He  will  look  on 
indifferently  while  bonds  are  issued  in  large  sums  but  it  is  an- 
other matter  altogether  when  a  direct  proposal  is  made  to  him 
for  an  increase  of  the  tax  rate,  say,  from  $i  to  $1.25  on  each 
$100  of  the  assessed  value  of  his  property.  No  matter  how 
good  the  purpose  for  which  the  additional  revenues  are 
needed  taxpayers  will  vigorously  resist  this  open  attempt  to 
induce  them  to  make  over  a  larger  portion  of  their  substance 
to  the  "  state  ". 

As  with  other  referenda,  so  with  these  in  respect  of  finan- 
cial subjects,  a  majority  of  the  votes  cast  on  the  proposition 
is  usually  decisive.  The  approval  of  a  larger  number  of  elec- 
tors, as  two-thirds,  must  however  be  secured  to  validate  any 
increase  in  the  local  debt  in  some  of  the  States,  where  it  is 
desired  to  make  the  conditions  more  difficult  in  order  the 
better  to  protect  the  public  credit. 

(3.)  Coming  finally  to  the  last  sub-class  of  the  referenda 
upon  financial  subjects  in  local  communities  we  find  that  the 
people  are  sometimes  consulted,  too,  with  respect  to  the  sale 
or  lease  of  property  which  is  vested  in,  or  is  commonly  held 
by  them  in  a  corporate  political  capacity.  The  citizens  have 
voted  in  many  cases  to  determine  whether  they  shall  be 
taxed  to  acquire  thi-s  property ;  they  are  now  to  decide  whether 
it  shall  be  sold  or  otherwise  alienated  by  the  community.  In 
the  former  case  there  was  a  mixture  of  sentiments  inducing 
the  referendum,  the  chief  of  which  was  a  fear  lest  the  people 
disapprove  of  the  new  taxes  that  may  be  laid  perhaps  for 
rather  questionable  purposes,  and  will  later  vote  to  retire  from 
office  those  who  have  imposed  these  charges  upon  them.  If 
the  people  can  be  made  to  incur  these  obligations  themselves 
at  their  own  instance  and  on  their  own  responsibility  repre- 
sentative officers  may  escape  much  unpleasant  blame.  But 
in  the  case  of  a  referendum  on  the  sale  of  lands  and  other 
public  property  the  controlling  motive  seems  to  be  another. 
Here,  as  with  a  poll  of  the  people  on  the  question  of  granting 
franchises  and  concessions  to  private  water  and  lighting  com- 
panies in  cities,  the  people  are  introduced  as  a  brake  upoi 


284  THE  REFERENDUM  IN  AMERICA 

local  councils  and  boards  which  are  too  prone  inconsiderately 
to  dispose  of  valuable  holdings  of  this  kind. 

More  jealously  guarded  than  some  other  forms  of  public 
property  are  the  "  school  lands  "  which  the  Congress  of  the 
United  States,  in  pursuit  of  its  policy  with  respect  to  the 
public  lands,  made  over  to  the  States  for  the  benefit  of  educa- 
tion. "  Section  number  16  "  in  each  township  was  regarded 
as  school  land  and  when  this  section  was  not  available  for  the 
grant  equivalent  transfers  were  made  to  the  State.  This  land 
was  vested  in  the  townships,  each  holding  its  share  for  the  use 
of  its  common  schools,  and  it  was  sometimes  a  condition  of 
the  grant  that  neither  the  section  nor  any  part  of  it  should 
ever  be  sold  except  with  the  consent  of  the  inhabitants. 
Thus  by  the  act  of  Congress  of  February  15,  1843,  m  reference 
to  the  school  lands  of  Illinois,  Arkansas,  Louisiana  and 
Tennessee  it  was  provided  that  these  lands  in  any  township 
"  shall  in  no  wise  be  sold  without  the  consent  of  the  inhabit- 
ants of  such  township  or  district  to  be  obtained  in  such 
manner  as  the  legislatures  of  said  States  shall  by  law  di- 
rect ".18 

Two  methods  have  been  employed  with  the  object  of  se- 
curing the  assent  of  the  people  to  a  sale,  the  petition  and  the 
referendum.  Thus  in  Illinois19  and  Arkansas20  the  popular 
sense  regarding  this  question  is  secured  by  circulating  a  pe- 
tition for  the  signatures  of  the  citizens;  while  in  Indiana,21 
Ohio,22  Alabama,23  and  Louisiana,24  a  vote  of  the  people  of 
the  township  at  a  referendum,  in  which  the  ballots  bear  the 
words  "  Sale  "  or  "  No  Sale  ",  or  their  equivalents,  is  requi- 
site. 

The  people  are  sometimes  directly  consulted  also  in  regard 

18  United  States  Statutes  at  Large,  Vol.  V,  p.  600. 
10  Starr  and  Curtis'  Statutes,  p.  37*9- 

20  Sandels  and  Hill's  Statutes,  sees.  7114  et  seq. 

21  Homer's  Indiana  Statutes,  sees.  4329  et  seq. 

22  Revised  Statutes  of  Ohio,  sees.   1418  et  seq. 

23  Code  of  Alabama,  sees.   3635  et  seq. 

24  Wolff's  Revised  Laws  of  Louisiana,  sec.  2958;  cf.  Telle  v.  School 
Board,  44  La.  An.  p.  365. 


ON  LOAN  BILLS  AND  FINANCIAL  PROPOSALS    285 

to  the  lease  of  school  lands,  as  in  Indiana.25  This  referendum 
has  found  its  way  into  the  Constitution  of  at  least  one  State, 
Kansas.26 

Public  property  of  other  kinds — not  lands — is  sometimes 
vested  in  the  people  of  a  community  in  this  special  manner, 
a  legal  sale  being  possible  only  after  a  petition  requesting  that 
this  course  shall  be  taken,  has  been  signed  by  a  large  number 
of  the  inhabitants,  or  an  election  is  held  and  the  people  vote  in 
favor  of  the  sale.  In  the  counties  of  Kansas  poor  asylums 
or  poor  farms  which  represent  a  value  in  excess  of  $3,000 
may  be  sold  or  leased  only  by  way  of  the  referendum.27  In 
Missouri  in  cities  of  the  "  first  class  "  the  "  municipal  assem- 
bly "  may  pass  an  ordinance  for  the  sale  or  lease  of  "  any  of 
the  parks,  places  or  squares  "  of  the  city.  However  "  no 
such  sale  or  lease  shall  be  made  by  the  municipal  assembly 
unless  the  ordinance  providing  therefor  be  submitted  to  a 
vote  of  the  qualified  voters  of  the  city  for  ratification  at  a  gen- 
eral election,  and  be  ratified  by  a  majority  of  the  qualified 
voters  of  the  city  ",28  Any  township  in  Ohio  may  sell  "  real 
estate  or  buildings  which  it  does  not  need  ",  if  the  people  of 
the  district  indicate  their  approval  of  the  policy.29  An  act 
passed  by  the  legislature  of  Ohio  in  1887  authorized  a  poll 
of  the  people  in  the  city  of  Cincinnati  on  the  question  of  sell- 
ing a  line  of  railway  which  had  been  under  the  ownership  and 
control  of  the  commonalty.30 

25  Homer's  Indiana  Statutes,  sec.  4329;  cf.  Acts  of  Tennessee,  1889, 
p.  72. 

28  Constitution  of  Kansas,  art.  vi,  sec.  5. 

27  Webb's   Statutes   of   Kansas,    chap.    156,   sec.   37. 
™  Revised  Statutes  of  Missouri,  1889,  p.  348. 

29  Revised  Statutes  of  Ohio,  sec.  1481. 
*>Ibid.,  sec.  9868. 


CHAPTER  XII 

THE  LOCAL  REFERENDUM — LOCAL  OPTION   LIQUOR  LAWS  AND 
VEXED  QUESTIONS 

WE  have  arrived  now  finally  at  the  third  and  last  general 
class  in  the  scheme  which  was  originally  mapped  out  for  the 
discussion  of  this  subject.  In  this  class  are  embraced  the 
referenda  on  vexed  questions  of  various  kinds  regarding 
which  the  people  hold  very  opposite  opinions  and  are  likely 
violently  to  disagree.  I  have  noted  in  my  remarks  con- 
cerning some  of  the  earlier  classes  of  local  referenda, 
more  particularly  those  on  financial  questions,  that  many  of 
these  proposals  are  essentially  of  a  disagreeable  and  vexing 
character.  The  legislature  hesitates  either  to  enact  or  to  re- 
fuse to  enact  a  certain  measure.  It  would  be  criticized  by 
partisans  no  matter  what  policy  it  should  adopt.  The  legis- 
lators say  then  to  the  people :  "  We  will  refer  this  question  to 
you.  You  elect  us  and  we  represent  you.  In  this  matter  we 
will  submit  the  law  directly  to  you  and  if  you  are  in  favor  of 
it  you  may  pass  it ;  if,  however,  you  are  opposed  to  it  you  will 
reject  it.  In  any  case  you  cannot  blame  us." 

The  most  familiar  type  of  conditional  legislation  of  this 
kind  in  local  communities  relates  to  the  control  and  prohi- 
bition of  the  traffic  in  intoxicating  liquors.  In  the  local  dis- 
tricts, as  in  the  States,  the  referendum  in  respect  of  this  sub- 
ject enjoys  a  wide  application  and  it  has  been  in  common  use 
for  more  than  fifty  years.  This  local  veto,  a  majority  of  the 
electors  in  a  county,  a  township  or  a  borough  having  the 
power  to  decide  whether  or  not  liquors  shall  be  sold  therein, 
has  come  to  be  looked  upon  as  an  almost  necessary  feature  of 
American  government.  It  is  generally  approved  by  writers 

286 


ON  LIQUOR  LAWS  AND  VEXED  QUESTIONS      287 

on  constitutional  subjects  and  by  the  courts,  and  lacking  this 
method  it  would  be  difficult  to  suggest  another  which  would 
be  so  satisfactory  to  great  bodies  of  the  people  who  are  the 
bone  and  sinew  of  the  American  democracy.  Whether  an 
attempted  regulation  of  the  habits  of  men  with  respect  to  what 
they  eat  and  drink  is  a  perilous  attack  on  individual  rights 
without  which  no  society  can  have  native  strength  and  original 
purpose,  or  whether  it  is  not,  there  is  a  general  disposition 
to  say  to  the  drinker  or  the  dram  seller  on  the  one  side  that  he 
must  conform  to  the  washes  of  the  majority,  and  to  the  tee- 
totaler and  the  reformer  of  mankind  on  the  other  that  he  must 
do  the  same  thing.  Constitutional  thinkers  familiar  with  our 
practice  will  remark,  whether  they  are  individualists  or  advo- 
cates of  state  intervention,  that  a  community  has  the  un- 
doubted "  right  "  to  prohibit  the  sale  of  liquors  inside  its 
borders,  if  the  people  at  a  plebiscite  express  their  approval  of 
this  policy.  Such  a  community  is  held  to  possess  the 
"  right  ",  even  without  a  direct  vote  of  its  inhabitants  in  favor 
of  prohibition,  in  the  regular  exercise  of  the  police  power. 
Through  its  appointed  agents  liquor  selling  may  be  restricted 
by  the  local  corporation ;  it  may  also  be  forbidden,  but  the  lat- 
ter is  a  course  which  the  legislature  on  its  own  responsibility 
will  rarely  authorize  the  officers  of  a  county,  a  township  or 
other  local  district  to  pursue  until  public  sentiment  shall  be- 
come much  more  nearly  unanimous  than  it  is  to-day. 

The  referendum  affords  a  most  convenient  way  out  of  a 
disagreeable  predicament,  for  by  our  "  local  option  "  system 
a  "  general  law  "  may  be  enacted  by  the  legislature  and  may 
stand  upon  the  statute  book  permitting  a  vote  of  the  people 
whenever  certain  conditions  shall  be  fulfilled,  and  it  still  re- 
mains there  even  though  not  a  single  district  in  the  State  has 
chosen  to  avail  itself  of  the  privilege.  It  enforces  or  repeals 
itself  automatically  according  as  the  sentiment  of  the  electors 
with  the  passage  of  time  may  undergo  change  regarding  this 
question.  A  more  elastic  form  of  legislation  it  would  be  hard 
to  devise,  and  a  more  ingenious  method  of  escape  from  the  bit- 
ter attacks  of  the  teetotalers  on  the  one  hand  and  of  the  users 


288  THE  REFERENDUM  IN  AMERICA 

of  liquors  and  the  publicans  on  the  other  can  scarcely  be  con- 
ceived. It  is  pleasant  to  encounter  the  hostility  of  neither 
faction,  as  politicians  in  this  country  very  well  know,  and  the 
temperance  "  campaigns  "  draw  political  lines  so  closely  and 
divide  social  classes  so  sharply  that  any  device  by  which  a 
legislator  may  pass  the  charge  of  bias  or  bad  faith  back  again 
to  the  people,  from  whom  it  emanates,  finds  a  cordial  welcome. 
Out  of  such  conditions  the  "  local  option  "  principle  with 
respect  to  subjects  of  this  kind  in  this  country  has  been  a 
natural  development. 

One  of  the  earliest  of  the  local  option  laws  in  reference  to 
the  sale  of  liquors  which  I  have  been  able  to  find  was  passed 
by  the  legislature  of  the  State  of  Pennsylvania  in  1846. 
There  were  probably  local  option  liquor  laws  applying  to 
single  and  separate  counties  prior  to  that  time,  but  this  date 
marks  with  approximation  the  beginning  of  the  history  of 
this  referendum  in  the  United  States.  The  Pennsylvania  law 
of  1846  took  into  account  no  larger  units  than  boroughs, 
wards  of  cities  and  townships  and  these  only  in  some  eighteen 
counties,  the  names  of  which  were  distinctly  specified.  The 
elections  were  to  be  annual  commencing  with  1847.  The 
ballots  were  to  contain  the  words  "  For  the  sale  of  liquors  " 
or  "  Against  the  sale  of  liquors  ".  If  a  majority  of  the 
votes  cast  on  the  proposition  were  in  favor  of  the  sale,  inns 
and  taverns  were  to  be  licensed  as  they  had  earlier  been;  if, 
however,  a  majority  of  the  votes  cast  were  against  the  sale 
the  traffic  would  be  declared  to  be  a  "  public  nuisance  "  and 
it  would  be  prohibited  and  penalized.1 

A  similar  law,  of  application  to  the  separate  counties  of 
Delaware,  was  passed  by  the  legislature  of  that  State  in  1847. 
The  people  in  that  year  and  at  any  subsequent  annual  election, 
when  a  number  equal  to  one-fourth  of  those  voting  at  the  last 
preceding  election  should  request  it  in  writing,  were  to  deposit 
ballots  bearing  the  words  "  License  "  or  "  No  License  "  in 
"  a  box  provided  for  that  purpose  ".  In  any  county  voting 

1  Session  Laws  of  Penna.,  p.  248;  cf.  ibid.,  p.  431- 


ON  LIQUOR  LAWS  AND  VEXED  QUESTIONS       289 

"  No  License  "  the  sale  of  alcoholic  beverages  became,  ipso 
facto,  a  punishable  offense.2 

From  this  time  forward  "  local  option  "  laws  on  the  sub- 
ject of  liquor  licenses  gained  ground  rapidly  and  steadily 
despite  occasional  unfavorable  opinions  from  the  State  su- 
preme courts.  To-day  there  are  such  laws  in  perhaps  half 
the  States  of  the  Union,  the  system  having  met  with  much 
favor  in  the  South  where  it  has  spread  irresistibly.  There 
are  "  License  "  and  "  No  License "  elections  also  in  New 
England,  notably  in  Massachusetts  and  Connecticut,  where 
the  principle  has  the  support  of  a  public  sentiment  which  is 
as  intelligent  as  any  in  the  United  States. 

In  three  States,  Florida,  Texas  and  Delaware,  this  refer- 
endum is  guaranteed  to  the  people  in  their  local  communities 
by  the  Constitutions.  Thus  in  Florida  the  Constitution  pro- 
vides as  follows :  "  The  Board  of  County  Commissioners  of 
each  county  in  the  State,  not  oftener  than  once  in  every  two 
years,  upon  the  application  of  one-fourth  of  the  registered 
voters  of  any  county,  shall  call  and  provide  for  an  election  in 
the  county  in  which  application  is  made  to  decide  whether 
the  sale  of  intoxicating  liquors,  wines  or  beer  shall  be  pro- 
hibited therein,  the  question  to  be  determined  by  a  majority 
vote  of  those  voting  at  the  election  called  under  this  section," 
etc.3 

The  Constitution  of  Texas  prescribes  that  "  the  legislature 
shall  at  its  first  session  enact  a  law  whereby  the  qualified 
voters  of  any  county,  justice's  precinct,  town,  city  or  such  sub- 
division of  a  county,  as  may  be  designated  by  the  commis- 
sioners' court  of  said  county,  by  a  majority  vote  from  time 
to  time  may  determine  whether  the  sale  of  intoxicating  liquors 
shall  be  prohibited  within  the  prescribed  limits  ".* 

The  new  Constitution  of  Delaware  declares :     "  The  Gen- 

2  Session  Laws  of  Delaware,  p.  178.  This  law  was  declared  un- 
constitutional by  the  State  Court  of  Errors  and  Appeals  in  the  notable 
opinion  Rice  v.  Foster,  4  Harr.  479. 

8  Constitution  of   1885,   art.  xix,  sec.   i. 

'Constitution  of  1876,  art.  xvi,  sec.  20. 


290  THE  REFERENDUM  IN  AMERICA 

eral  Assembly  may  from  time  to  time  provide  by  law  for  the 
submission  to  the  vote  of  the  qualified  electors  of  the  several 
districts  of  the  State,  or  any  of  them  mentioned  in  section  2 
of  this  article  [i.  e.,  four  districts, — Sussex  county,  Kent 
county,  the  city  of  Wilmington  and  the  rural  and  remaining 
portions  of  New  Castle  county,  the  State  containing  only 
three  counties]  the  question  whether  the  manufacture  and  sale 
of  intoxicating  liquors  shall  be  licensed  within  the  limits 
thereof;  and  in  every  district  in  which  there  is  a  majority 
against  license  no  person,  firm  or  corporation  shall  thereafter 
manufacture  or  sell  spirituous,  vinous  or  malt  liquors,  except 
for  medicinal  or  sacramental  purposes  within  said  district, 
until  at  a  subsequent  submission  of  such  question,  a  majority 
of  votes  shall  be  cast  in  said  district  for  license."  The  As- 
sembly must  submit  the  prohibition  question  in  any  district 
whenever  a  majority  of  the  members  of  each  house  of  the 
legislature  of  Delaware  for  that  district  request  that  an 
election  shall  be  held  on  this  subject.5 

General  local  option  liquor  laws  are  to-day  to  be  found 
on  the  statute  books  of  the  following  States:  Arkansas, 
Connecticut,  Florida,  Georgia,  Kentucky,  Massachusetts, 
Michigan,  Minnesota,  Mississippi,  Missouri,  Montana,  New 
York,  North  Carolina,  Ohio,  South  Dakota,  Texas,  Virginia, 
and  Wisconsin.  Such  laws  have  earlier  been  in  force  in  other 
States  but  have  now  been  repealed.  Furthermore  many 
States  to-day  have  special  laws  authorizing  a  plebiscite  on  this 
subject  in  separate  local  districts,  as  New  Jersey,  Pennsyl- 
vania, Colorado,  Alabama,  West  Virginia  and  Maryland.  In 
several  States,  too,  general  and  special  laws  exist  side  by  side. 

Concerning  the  general  laws  it  may  be  noted  that  some 
apply  to  counties,  and  others  only  to  smaller  districts — sub- 
divisions of  counties.  There  is  local  option  with  the  county 
as  the  unit  in  Arkansas,6  Florida,7  Georgia,8  Michigan,9 

5  Constitution  of  1897,  art.  xiii,  sec.   i. 

8  Sandels  and  Hill's  Digest  of  Arkansas   Statutes,  p.   1115. 

7  Revised  Statutes  of  Florida,  p.  329.         8  Code  of  Georgia,  sec.   1541. 

•Howell's  Annotated  Statutes,  Supplement  1885-1890,  pp.  3173  et  seq. 


ON  LIQUOR  LAWS  AND  VEXED  QUESTIONS      291 

Mississippi,10  Montana.11  There  is  local  option  in  the  coun- 
ties, and  as  well  and  at  the  same  time  in  the  cities,  towns,  pre- 
cincts, wards  and  other  constituent  parts  of  counties  in  Ken- 
tucky,12 Missouri,13  North  Carolina,14  Texas,15  and  Vir- 
ginia.16 There  is  local  option  on  this  subject  in  towns,  town- 
ships and  in  districts  smaller  than  the  county  only,  in  Con- 
necticut,17 Massachusetts,18  Minnesota,19  New  York,20  and 
Wisconsin.21 

A  method  employed  rather  generally  in  the  South,  where 
the  county  is  the  chief  territorial  unit  for  purposes  of  local 
government,  makes  it  possible  for  election  districts  and  pre- 
cincts to  secure  "  prohibition  "  even  though  the  whole  county 
and  the  contiguous  districts  in  the  same  county  vote  "  for 
license  ".  It  is  provided  that  when  the  people  of  the  entire 
county,  that  is  of  all  the  election  precincts  added  together, 
shall  vote  against  the  sale  of  liquors  then  none  shall  be  sold 
in  any  part  of  the  county.  However,  if  the  vote  of  the  people 
of  the  entire  county  shall  be  "  for  the  sale  "  there  may  still 
be  no  licenses  granted  in  such  precincts  of  the  county  as  have 
returned  majorities  for  prohibition.  This  is  a  saving  feature 
of  the  law  in  Arkansas,  Florida,  North  Carolina,  Texas,  and 
Virginia,  which  appears  to  indicate  that  it  was  framed  in  the 
interest  of  the  temperance  element  rather  than  of  the  "  saloon 
keeper  ".  The  legislature,  though  desiring  to  avoid  any  ap- 
pearance of  friendliness  or  unfriendliness  to  either  party,  here 
seems  to  err  on  the  side  of  those  who  would  close  the  inns  and 

10  Code  of  Mississippi,  sees.  1609  et  seq. 

11  Political  Code,   sees.   3180   et  seq. 

12  Barbour  and  Carroll's  Kentucky  Statutes,  sees.  2554  et  seq. 
"  Revised  Statutes  of  Missouri,  p.   1050. 

14  Code  of  North  Carolina,  sees.  3113  et  seq. 

15  Supplement  to   Sayles'   Civil  Statutes,   1888   to    1893,   Title  63,   art. 

3227- 

10  Code  of  Virginia,   1887,  p.  200. 
17  General  Statutes,  1888,  sec.  3050. 

13  Public  Statutes  of  Massachusetts,   1882,  pp.  524-25. 

19  Statutes  of  Minnesota,   1894,  sees.   1266,   1990. 

20  Laws  of  1896,  p.  57;  cf.  ibid.,  1897,  P-  216. 

21  Sanborn  and  Berryman's  Wisconsin  Statutes,  sec.   15653. 


292  THE  REFERENDUM  IN  AMERICA 

drinking  shops  since  a  rule  is  adopted  which  does  not  "  work 
both  ways  ".  If  the  county  votes  "  no  license  "  the  sale  of 
liquors  is  prohibited  everywhere.  If  the  vote  is  "for  license  " 
the  trade  is  permitted  only  in  such  precincts  of  the  county  as 
have  given  local  majorities  in  favor  of  the  traffic.22 

It  is  interesting  to  observe  with  what  limit  of  frequency 
these  local  option  elections  may  be  held.  In  some  States  the 
laws  contain  no  specific  restrictions  on  this  subject.  The 
plebiscite  is  taken  at  the  initiation  of  local  officers,  or  of  a 
certain  percentage  of  the  electors,  who  may  at  any  time  sign 
and  present  a  petition  in  favor  of  an  election.  If  the  vote 
be  in  the  affirmative  the  law  remains  in  force  until  similar 
steps  are  taken  for  another  referendum  and  the  people  deter- 
mine to  repeal  it,  and  resume  the  status  quo  ante  with  respect 
to  the  liquor  selling  business.  If  the  vote  be  in  the  negative 
licenses,  of  course,  continue  to  be  issued  until  at  some  future 
time  a  "  no  license  "  majority  is  secured. 

By  the  laws  of  several  States,  however,  definite  periods  are 
prescribed  at  which  the  elections  may  or  shall  take  place. 
Thus  in  the  cities  and  towns  of  Massachusetts  and  in  North 
Carolina  annual  elections  are  contemplated.  In  Arkansas, 
Florida,  Michigan,  Montana,  New  York,  Ohio,  Texas  and 
Virginia  the  referendum  may  be  taken  not  oftener  than  once 
in  two  years.  With  a  view  to  reducing  the  confusion  and 
curtailing  the  expense  of  frequent  pollings  Kentucky  and 
Mississippi  have  fixed  the  period  at  three  years,  while  Georgia 
and  Missouri  do  not  permit  an  election  more  frequently  than 
once  in  four  years.  In  towns  in  New  York  four  separate 
propositions  are  submitted  to  the  people  with  reference  to  the 
sale  of  liquors.  The  electors  are  to  decide  (i)  whether 
liquors  shall  be  sold  to  be  drunk  on  the  premises ;  (2)  whether 
liquors  shall  be  sold  when  they  are  not  to  be  drunk  on  the 
premises;  (3)  whether  liquors  shall  be  sold  on  a  pharma- 
cist's or  physician's  prescription ;  (4)  whether  liquors  shall  be 

22  Cf.  Sandels  and  Hill's  Arkansas  Statutes,  p.  1115;  Revised  Statutes 
of  Florida,  p.  329;  Code  of  North  Carolina,  sees.  3113  et  seq. ;  Supp. 
to  Sayles'  Civil  Statutes  of  Texas,  art.  3227 ;  Code  of  Virginia,  p.  200. 


ON  LIQUOR  LAWS  AND  VEXED  QUESTIONS      293 

sold  by  hotel  keepers.  If  the  election  results  affirmatively 
with  respect  to  any  or  all  of  these  propositions  licenses  must 
accordingly  be  granted  to  applicants  by  the  proper  officers.23 

The  ballots,  it  may  also  be  of  interest  to  observe,  bear 
various  words  and  phrases :  "  For  Selling  "  or  "  Against 
Selling  "  in  Florida ;  "  For  the  Sale  "  or  "  Against  the  Sale  " 
in  Georgia  and  Mississippi;  "Prohibition"  or  "License" 
in  North  Carolina ;  "  For  License  "  or  "  Against  License  " 
in  Wisconsin ;  "  For  Prohibition  "  or  "  Against  Prohibition  " 
in  Texas ;  "  Shall  licenses  be  granted  for  the  sale  of  intoxi- 
cating liquors  in  this  town  (or  city)  ?  "  "  Yes  "  or  "  No  " 
in  Massachusetts.  The  method  of  submitting  this  question, 
as  well  as  other  propositions  of  the  kind  is  being  amended 
from  time  to  time  as  changes  are  made  in  our  ballot  systems. 
The  object  always  is  to  find  a  descriptive  phrase  which,  while 
being  concise,  will  at  the  same  time  make  it  easy  for  the  voter 
at  once  to  distinguish  the  propositions  and  deposit  his 
"  ticket "  or  put  his  cross  on  the  ballot  paper  as  intelligently 
and  as  expeditiously  as  possible. 

In  the  same  way  when  it  is  a  question  of  not  entirely  pro- 
hibiting the  liquor  trade  in  local  districts,  but  only  of  regu- 
lating it,  the  referendum,  has  occasionally  found  application. 
In  two  States,  Wisconsin  and  New  Jersey,  the  people  may  de- 
termine how  large  a  fee  shall  be  collected  from  innkeepers 
and  the  proprietors  of  tippling  shops,  and  "  saloons ". 
"  High  license  "  as  a  method  of  reducing  the  evils  of  intem- 
perance has  had  many  advocates  in  this  country.  By  a  high 
tax  it  is  hoped  to  restrict  the  business  within  certain  definite 
bounds  by  materially  limiting  the  number  of  places  of  sale. 
In  Wisconsin,  for  instance,  electors  of  cities,  villages  and 
towns  may,  by  popular  vote,  determine  the  amount  of  the 
license  fee,  though  the  election  must  not  be  held  in  the  same 
community  oftener  than  once  in  three  years.  In  towns  when 
the  sum  paid  hitherto  has  been  $100  the  people  may  vote  to 
increase  it  to  $250  or  $400,  as  they  may  select.  In  cities,  vil- 

23  New  York  Laws  of  1896,  p.  57;  ibid.,   1897,  p.  216. 


294  THE  REFERENDUM  IN  AMERICA 

lages,  etc.,  when  the  fee  has  been  earlier  fixed  at  $200,  the 
people  may  choose  between  increases  to  $350  or  $500.  Choice 
is  always  to  be  made  from  among  three  different  sums,  and  it 
is  provided  "  that  if  the  highest  amount  voted  for  does  not 
receive  a  plurality  of  the  votes  cast,  then  the  votes  cast  for 
such  amount  shall  be  considered  as  having  been  cast  for  the 
next  lower  amount  and  shall  be  so  counted  ".24 

In  cities,  boroughs,  towns  or  townships  in  New  Jersey  on 
the  receipt  of  a  petition  signed  by  a  certain  number  of  citizens 
asking  that  not  less  than  a  specified  sum  of  money  shall  be 
collected  of  applicants  for  liquor  licenses  local  officers  must 
arrange  for  a  plebiscite.  The  people  are  to  vote  "  For  $ — 
license  fee  "  (the  amount  named  in  the  petition  being  inserted 

in  the  blank  space  on  the  ballot)  or  "  Against  $ license 

fee  ",25 

Very  recently  socialistic  experiments  in  relation  to  the 
liquor  trade  have  been  undertaken  in  several  States.  These 
have  assumed  a  form  akin  to  the  so-called  Gothenburg  and 
other  Scandinavian  systems.  Some  of  the  American  schemes 
of  regulation  have  involved  the  state  still  more  closely  in  the 
business.  A  state  monopoly  is  created  and  official  dispen- 
saries are  established,  alcoholic  beverages  being  sold  by 
agents  appointed  by  the  government  who  act  in  obedience  to 
definite  rules.  Such  a  scheme  of  public  management  in  refer- 
ence to  the  whole  State  has  lately  been  introduced  in  South 
Dakota,  by  an  amendment  to  the  Constitution  approved  by 
the  people  at  the  autumn  elections  in  iSQS.26  In  counties, 
cities  and  towns  in  South  Carolina  in  which  the  sale  of  liquors 
has  earlier  been  prohibited  by  law  elections  may  be  held  on 
the  question  of  adopting  the  dispensary  plan  as  an  alternate 
system.27  In  the  neighboring  State  of  North  Carolina  there 

24  Sanborn    and    Berryman's   Statutes,    1898,    sec.    iS48b. 

25  General  Statutes  of  New  Jersey,  p.  1810. 

20  Session  Laws  of  South  Dakota  of  1897,  p.  88  ;  cf.  Constitution  of 
South  Carolina,  art.  viii«  sec.  n. 

"Laws  of  South  Carolina  of  1893,  p.  434;  ibid.,  1894,  P-  7^i ;  ibid., 
1896,  p.  129. 


ON  LIQUOR  LAWS  AND  VEXED  QUESTIONS      295 

have  been  local  elections,  also,  respecting  the  establishment 
of  dispensaries  with  a  view  to  putting  the  liquor  trade  under 
municipal  control.28 

Somewhat  similar  to  local  option  on  the  prohibition  ques- 
tion is  the  referendum  which  exists  in  a  considerable  number 
of  the  Western  and  Southern  States  in  respect  of  the  building 
of  fences  and  the  restraint  of  domestic  animals.  Although 
this  is  a  matter  which  touches  the  finances  of  private  citizens, 
it  certainly  is  not  a  form  of  public  expenditure  such  as  the  con- 
struction of  a  town  hall,  a  jail,  a  school  house  or  a  road.  On 
the  other  hand,  it  is,  of  course,  a  financial  proposition  pure 
and  simple  when  "  fencing  districts  "  are  organized  and  the 
citizens  resident  therein  tax  or  bond  themselves  to  build  a 
fence  about  the  whole  district  in  order  to  protect  their  lands 
from  stock  roaming  over  unfenced  territory,  as  in  Arkansas. 
This  case,  however,  is  exceptional.29  It  is  a  subject  upon 
which  men  are  certain  to  entertain  very  different  opinions 
as  in  the  case  of  the  sale  of  intoxicating  liquors  and  being 
essentially  a  vexed  question  it  is  rightly  included  in  this, 
rather  than  the  preceding  chapter. 

It  is  the  rule  at  the  "  common  law  "  which  is  the  back- 
ground for  all  our  legal  canons  on  this  subject  that  another's 
cattle  and  domestic  animals  go  abroad  at  their  owner's  risk, 
whether  there  are  fences  to  hinder  them  or  not.  It  is  enough 
that  the  animals  being  at  large  should  damage  another  per- 
son's property.  The  laws  which  have  been  passed  by  the 
various  State  legislatures  on  this  subject  are  in  modification 
of  this  well  established  rule,  and  the  optional  "  Stock  Laws  ", 
"  Herd  Laws  "  and  "  Fence  Laws  "  are  meant  to  give  the 
citizens  of  counties,  townships  and  other  local  districts  the  op- 
portunity to  decide  whether  practical  conditions  in  many 
American  communities  do  not  demand  a  rather  different 
policy.  In  new  communities,  as  so  many  have  been  and  still 
are  in  the  United  States,  it  is  expensive  for  large  landowners 

"Public  Laws  of  North  Carolina,   1895,  p.  310. 

"9  Cf.  Sandels  and  Hill's  Digest  of  the  Statutes  of  Arkansas,  1894, 
P-  443- 


THE  REFERENDUM  IN  AMERICA 

to  build  fences  either  for  the  purpose  of  confining  their  own 
animals  or  for  keeping  out  the  herds  of  their  neighbors.  All 
interests  then  are  likely  to  agree  to  let  live  stock  run  at  large, 
the  respective  owners  employing  their  own  guards  and 
herdsmen  at  a  less  cost  to  themselves  than  it  would  be  were 
they  to  enclose  their  fields  and  pastures. 

When  the  two  interests,  agricultural  and  pastoral,  are 
brought  into  close  juxtaposition,  however,  important  differ- 
ences are  likely  soon  to  arise  among  the  inhabitants.  Civili- 
zation moves  forward.  If  an  owner  has  beautiful  grounds 
about  his  home  he  desires  that  they  shall  not  be  overrun  and 
damaged  by  other  men's  roving  stock.  He  desires  that  his 
fields  of  growing  grain,  his  pastures,  so  soon  as  they  are  cul- 
tivated and  cease  to  be  mere  natural  tracts,  his  gardens  and 
his  orchards  shall  not  be  feeding  places  for  others'  herds  and 
flocks.  He  wants  a  guarantee  also  that  his  own  animals  shall 
not  be  associated  against  his  will  with  the  males  of  other 
owners  lest  there  shall  be  a  mixture  of  breeds.  Thus  what 
was  at  first  in  a  primitive,  pastoral  community  a  tolerable, 
even  a  satisfactory  condition,  becomes  with  the  division  and 
subdivision  of  land  into  smaller  parcels  a  matter  of  serious 
concern.  The  richer  and  more  well-to-do  farmers  are  willing 
to  enclose  their  lands  and  pen  up  their  stock.  They  wish  their 
neighbors  to  do  the  same  thing,  a  policy  however  which  in 
the  democratic  local  communities  of  America  is  certain  to  meet 
with  strong  resistance.  The  poor  man  wants  to  escape  the 
expense  of  building  a  fence.  If  he  does  build  one  it  is  likely 
to  be  a  cheap  structure  and  ineffective  for  its  purpose.  He 
is  likely  too  to  keep  it  in  poor  repair,  so  that  it  is  no  longer 
"  horse  high,  bull  strong  and  pig  tight ",  a  test  legally  estab- 
lished in  rural  sections  many  years  ago.  He  may  desire  to 
keep  and  breed  cows,  sheep,  hogs  or  poultry  when  he  has  no 
land  of  his  own,  merely  a  small  tenement  in  some  industrial 
village,  or  a  house  and  "  lot  "  by  the  roadside.  He  then 
turns  his  animals  loose  so  that  they  may  forage  for  a  living 
in  the  roads  and  streets,  in  vacant  wood  lots,  forests  and  other 
open  spaces  which  are  not  enclosed  within  strong  fences. 


ON  LIQUOR  LAWS  AND  VEXED  QUESTIONS      297 

This  is  the  most  aggravating  phase  of  the  whole  development 
and  it  creates  classes  in  nearly  all  rural  communities.  The 
richer  farmer  is  arrayed  against  the  "  poor  man  "  who  wants 
to  keep  his  cow  and  his  hog  and  let  them  run  at  large  in  the 
public  streets  and  commons.  Since  the  politicians  in  the 
State  legislatures  are  afraid  to  incur  the  displeasure  of  the 
"  poor  men  "  in  their  constituencies  just  as  they  are  afraid 
of  the  temperance  element,  they  try  to  escape  their  rightful 
share  of  responsibility  by  submitting  the  whole  question  to 
popular  vote. 

There  are  general  optional  laws  on  this  subject  to-day  in 
Arkansas,30  Georgia,31  Iowa,32  Kansas,33  Kentucky,34  Minne- 
sota,35 Mississippi,36  Missouri,37  New  Jersey,38  North  Caro- 
lina,39 Oregon,40  Rhode  Island,41  Texas,42  and  West  Vir- 
ginia.43 Besides  these  there  are  special  laws  relating  to  sepa- 
rate districts  which  are  named  in  the  legislative  acts  in  Ala- 
bama, Maryland,  Virginia  and  several  other  States.44  The 

80  Sandels  and  Hill's  Digest  of  the  Statutes  of  Arkansas,  pp.  443,  1570. 
Here  the  optional  feature  is  enforced  through  a  written  petition  signed 
by   a  majority   of  the  qualified  electors   of   the   district,   instead  of  by 
an  actual  poll  of  the  people  by  ballot. 

31  Code  of  Georgia,  sees.   1777  et  seq. 

32  Annotated  Code  of  Iowa,  sec.  444. 

33  General  Statutes  of  Kansas,  chap.   137,  sees,   i   et  seq.;  ibid.,  chap. 
137,  sees.  54  et  seq.;  ibid.,  chap.   138,  sees.  6  et  seq.;  ibid.,  chap.   138, 
sees.    10  et  seq. 

81  Barbour  and  Carroll's  Kentucky  Statutes,  sees.  4646  et  seq. 
85  Statutes  of  Minnesota,  sec.  941. 

80  Code  of  Mississippi,  sees.  2056  et  seq. ;  cf .  Session  Laws  of  Missis- 
sippi, 1896,  p.  145. 

87  Revised  Statutes  of  Missouri,  pp.    186  et  seq. 

38  General  Statutes  of  New  Jersey,  pp.  59,  60. 

99  Code  of  North  Carolina,  1883,  sees.  281  et  seq.;  Public  Laws  of 
North  Carolina,  1895,  p.  54;  ibid.,  p.  537. 

40  Codes  and  General  Laws  of  Oregon,  1892,  p.  1501 ;  Session  Laws  of 
1893,  P-  89. 

41  General  Laws  of  Rhode  Island,  1896,  p.  420. 

42  Constitution  of   1876,  art.  xvi,  sec.  23  ;   Sayles'  Revised  Civil  Stat- 
utes, 1888,  articles  4592  et  seq. 

43  Code  of  West  Virginia,  pp.  593,   1034. 

44  Cf.  Session  Laws  of  Pa.  of  1885,  p.   142,  and  Frost  v.  Cherry,  122 
Pa.  417- 


298  THE  REFERENDUM  IN  AMERICA 

tendency  as  might  be  expected  is  toward  definitive  legisla- 
tion which  will  prohibit  cattle  from  running  at  large  abso- 
lutely thus  marking  a  return  to  the  common  law  rule.45 
As  population  increases  and  the  interests  of  the  people  mul- 
tiply a  haphazard  system  has  less  and  less  to  commend  it,  and 
the  demand  is  for  an  unalterable  and  a  just  rule  which  shall 
apply  to  all  parts  of  the  State  uniformly.  That  animals  should 
be  allowed  to  run  at  large  to  molest  the  lands  of  any  person 
who  has  not  taken  the  precaution  to  put  strong  fences  around 
them  is  an  untenable  claim.  An  immemorial  Anglo-Saxon 
practice  and  the  sense  of  what  is  appropriate,  orderly  and 
right  are  wholly  on  the  side  of  a  policy  of  restraint  of  live 
stock  so  soon  as  a  community  passes  out  from  that  primitive 
social  condition  which  has  induced  men  to  look  temporarily 
with  toleration  upon  a  different  legal  system. 

As  with  local  option  respecting  the  granting  of  liquor 
licenses,  so  in  regard  to  the  building  of  fences  various  terri- 
torial units  are  selected  within  which  the  poll  of  the  people 
may  be  taken,  according  as  the  county  or  the  town  system 
is  of  predominating  influence  in  giving  form  and  char- 
acter to  local  government  within  a  State.  Counties,  towns, 
townships,  villages,  "  militia  districts  "  and  "  magisterial  dis- 
tricts "  are  all  designated  as  units,  and  frequently  in  the  same 
State  provision  is  made  for  a  plebscite  in  both  the  larger 
and  the  smaller  district.  Animals  of  several  species  come 
within  the  purview  of  these  rather  curious  optional  laws. 
They  are  made  to  include  not  only  horses  and  cattle  but  also 
hogs,  and  sheep  and  sometimes  goats  and  geese  as  well.  In 
other  cases  the  term  "  stock  "  has  a  more  restricted  meaning, 
being  limited  to  "  cattle,  horses,  mules  and  asses  "  as  in  Iowa. 
In  several  States  the  scope  of  the  proposal  to  restrain  domestic 
animals  is  defined  in  the  petition  for  the  election,  which  must 
be  signed  by  a  certain  number  of  citizens  before  the  plebis- 
cite can  be  taken.  Any  one  or  more  species  may  be  desig- 

45  Thus  Illinois  in  1895  which  had  earlier  had  an  optional  law  on  this 
subject  repealed  it.  Starr  and  Curtis'  Statutes,  2nd.  ed.,  1896,  p.  398; 
ibid.,  ist  ed.,  1885,  p.  279. 


ON  LIQUOR  LAWS  AND  VEXED  QUESTIONS      299 

nated  in  the  petition  and  the  election  is  held  upon  the  ques- 
tion of  restraining  these  animals  only.  In  other  cases  there 
are  two  separate  stock  laws  both  of  which  are  optional,  one 
relating  to  horses  and  neat  cattle,  the  other  to  hogs,  sheep  and 
sometimes  goats.  Thus  in  Arkansas,  Mississippi  and  Texas 
hogs,  sheep  and  goats  are  specially  provided  for.  Hogs  and 
sheep  are  in  a  category  to  themselves  in  Missouri,  while  in 
Oregon  and  Kansas  a  referendum  may  be  separately  taken 
with  respect  to  swine.  In  communities  where  other  kinds  of 
live  stock  are  still  allowed  to  go  at  large,  there  is  often  little 
disposition  to  be  lenient  with  hogs  which  are  a  source  of  great 
annoyance  to  careful  husbandmen.  Geese  may  also  be  re- 
strained from  running  outside  their  owners'  enclosures  upon 
a  vote  of  the  people  in  West  Virginia  and  Rhode  Island.  As 
with  "  License  "  and  "  No  License  "  elections  in  local  dis- 
tricts, so  too  with  the  stock  laws  there  is  fear  that  the  poll 
may  be  taken  too  often.  In  Georgia,  North  Carolina  and 
Texas  stock  and  fence  law  elections  may  not  take  place 
more  frequently  than  once  in  any  one  year;  in  Kentucky 
not  oftener  than  once  in  four  years. 

An  odd  variation  in  this  form  of  referendum  in  the  Amer- 
ican States  is  met  with  in  Iowa.  Here  in  counties  four  sepa- 
rate propositions  may  be  submitted  to  popular  vote:  (i) 
whether  stock  shall  be  restrained  from  running  at  large  ab- 
solutely and  at  all  times.  (2)  Whether  stock  shall  be  re- 
strained from  running  at  large  between  sunset  and  sunrise? 
(3)  Whether  stock  shall  be  restrained  from  running  at  large 
from  the  first  day  of  (inserting  the  name  of  the  month)  in 
each  year  until  the  first  day  of  (inserting  the  name  of  the 
month)  following?  (4)  Whether  stock  shall  be  restrained 
from  running  at  large  between  sunset  and  sunrise  from  the 
first  day  of  (name  of  month)  in  each  year  until  the  first  day 
of  (name  of  month)  following?46  By  this  means  the  electors 
may  compel  owners  to  enclose  their  stock  at  night  time  while 
farmers  cannot  be  on  guard,  and  at  certain  seasons  of  the 
year  when  the  crops  are  in  the  ground  and  when  a  general 

40  Annotated  Code  of  Iowa,  sec.  444. 


300  THE  REFERENDUM  IN  AMERICA 

trampling  over  the  open  fields  would  do  them  serious  injury. 
In  Kansas  also  there  is  a  "  Night  Herd  Law  ",  owners  of 
domestic  animals  in  local  districts  at  the  expressed  desire  of 
a  majority  of  the  citizens  being  obliged  to  pen  up  their 
stock.47  West  Virginia  adds  yet  another  modification  to  this 
peculiar  local  plebiscite  with  an  optional  law  for  the  re- 
straint of  bulls  over  one  year  old,  buck  sheep  over  four 
months  old  and  boars  over  two  months  old.  Animals  of  these 
special  classes  are  to  be  kept  within  enclosures  by  their 
owners  in  districts  in  which  the  people  decide  in  favor  of  such 
a  local  policy. 

Here  again  the  ballots  contain  various  words  and  phrases : 
in  Georgia,  "  Fence  "  or  "  No  Fence  " ;  Kansas,  "  For  the 
Herd  Law  "  or  "  Against  the  Herd  Law  " ;  Mississippi,  Texas 
and  West  Virginia,  "  For  a  Stock  Law  "  or  "  Against  a  Stock 
Law  " ;  North  Carolina,  "  Stock  Law  "  or  "  No  Stock  Law  " ; 
Oregon,  "  For  Running  at  large — Yes  "  or  "  For  Running  at 
large — No  " ;  Kentucky,  "  For  the  Running  at  large  of  Cat- 
tle (or  the  species  designated  in  the  petition)  in  - 
county  "  or  "  Against  the  Running  at  large  of  Cattle,  etc., 

in  county  " ;  Alabama,  "  Stock  at  Large  "  or  "  No 

Stock  at  Large  ". 

When  a  "  lawful  fence  "  which  will  form  a  more  effective 
barrier  than  a  mere  boundary  line  is  to  be  built,  it  becomes 
a  question  of  importance  to  determine  of  what  material  it 
shall  be  composed.  In  two  cases  that  have  come  to  my  notice 
this  is  a  subject  for  a  polling  of  the  people.  In  Texas  the 
electors  of  any  county  or  subdivision  of  a  county  may  de- 
termine "  by  a  majority  vote  whether  or  not  three  barbed 
wires  without  a  board  or  plank  shall  constitute  a  lawful 
fence  ",48  In  Kansas  elections  may  be  held  in  counties  to 
decide  whether  a  certain  "  Hedge  Law  "  shall  be  adopted. 
If  it  shall  be  approved  by  the  people  osage  orange  hedge  lines 
become  a  "  lawful  fence  ".49 

47  Cf.  Webb's  General  Statutes  of  Kansas,  chap.  137,  sees,  i  et  seq. 

48  Revised  Statutes  of  the  State  of  Texas,   1805,  p.  999. 

49  General  Statutes  of  Kansas,  chap.  153,  sees.  37  et  seq. 


ON  LIQUOR  LAWS  AND  VEXED  QUESTIONS      301 

A  singular  instance  of  lack  of  definite  moral  or  political 
purpose  in  a  legislature  is  met  with  in  Maryland.  In  1890  the 
General  Assembly  of  that  State  enacted  a  conditional  law 
respecting  the  taking  of  oysters  with  scoops,  "  scrapes  "  or 
dredges  in  "  the  waters  of  Somerset  county  ",  i.  e.,  in  a  por- 
tion of  Chesapeake  Bay.  The  proposition  was  to  protect 
these  valuable  beds  from  those  who  would  ruthlessly  destroy 
them,  and  thus  preserve  the  business  of  catching  oysters  in 
this  district  for  the  tongmen  whose  methods  are  more  com- 
patible with  the  perpetuation  of  this  useful  species  of  shell 
fish.  The  boats  belonging  to  dredgers  were  to  be  seized,  for- 
feited and  sold  for  the  benefit  of  the  school  fund  and  the 
owners  and  captains  were  to  be  placed  under  arrest  and 
committed  to  a  public  "  house  of  correction  ".  Before  going 
into  force,  however,  the  law  would  needs  be  approved  by  the 
voters  of  nine  election  districts  in  the  county,  the  ballots 
having  printed  on  them  the  words,  "  For  prohibiting  the 
taking  of  oysters  with  scrapes  or  dredges  "  and  "  Against 
prohibiting  the  taking  of  oysters  with  scrapes  or  dredges  ".50 

Another  peculiar  shifting  of  responsibility  regarding  a 
question  upon  which  a  legislature  might  be  expected  to  be 
able  of  itself  to  pass  a  definitive  judgment  is  to  be  noted  in 
connection  with  Sunday  observance.  Thus  the  Germans  of 
St.  Louis  desired  the  privilege  of  drinking  beer  on  Sunday. 
As  the  introduction  of  what  is  often  called  the  "  Continental 
Sunday "  was  strongly  opposed  by  other  elements  in  the 
community,  the  legislature  of  Missouri  in  1857  passed  a  law 
enacting  that  "  the  corporate  authorities  of  the  different  cities 
in  the  county  of  St.  Louis  shall  have  the  power,  whenever  a 

50  Laws  of  Maryland,  1890,  p.  832.  The  Supreme  Court  of  Maryland 
declared  this  law  to  be  unconstitutional  on  technical  grounds,  in  that 
authority  was  conferred  upon  the  citizens  of  nine  districts  of  a  county 
to  enact  a  law  which  affected  "  the  common  right  of  the  people  of  the 
whole  State  ".  Vide  Bradshaw  v.  Lankford,  73  Md.  428.  Nevertheless 
the  legislature  re-enacted  the  law  in  1804  in  a  slightly  modified  form, 
retaining  that  feature  of  it  which  required  a  referendum,  this  time, 
however,  submitting  the  measure  to  a  vote  of  the  people  of  the  entire 
county  instead  of  a  few  of  the  smaller  component  districts.  Cf.  Laws  of 
Maryland  of  1894,  p.  908. 


302  THE  REFERENDUM  IN  AMERICA 

majority  of  the  legal  voters  of  the  respective  cities  in  said 
county  authorize  them  so  to  do,  to  grant  permission  for  the 
opening  of  any  establishment  or  establishments  within  the 
corporate  limits  of  said  cities  for  the  sale  of  refreshments 
of  any  kind  (distilled  liquors  excepted)  on  any  day  in  the 
week  ".51  A  similar  referendum  has  been  proposed  several 
times  in  late  years  as  a  means  of  arriving  at  an  agreeable  re- 
sult with  respect  to  the  moot  point  of  selling  liquor  on  the 
Christian  Sabbath  day  in  New  York  city,  where  a  very  con- 
siderable body  of  sentiment  has  developed  in  favor  of  a  less 
rigorous  application  of  the  Sunday  laws. 

I  am  impelled  to  refer  in  this  connection  also  to  recent 
Canadian  experience  in  the  city  of  Toronto  from  which  can 
be  drawn  an  instance  I  have  failed  to  find  in  the  municipal 
law  of  the  United  States.  The  legislature  of  the  Province  of 
Ontario  in  1892  passed  an  act  incorporating  "  The  Toronto 
Railway  Company  "  and  conferring  upon  it  rights  and  powers 
to  operate  street  railways  in  that  city.  It  was  specified,  how- 
ever, that  no  street  car  should  ever  be  run  by  the  company 
on  Sunday  unless  the  question  should  first  be  referred  to  the 
people  of  the  city  and  they  should  assent  to  the  proposal.  It 
appears  that  the  elements  in  the  city  opposed  to  "  Sunday 
cars  "  succeeded  in  limiting  the  company's  business  to  six 
days  in  the  week  until  iSQS.52  Then  an  agreement  was  en- 
tered into  by  which  the  company  bound  itself  not  to  run  its 
cars  beyond  a  certain  definite  speed  while  passing  churches 
during  the  hours  when  meetings  were  in  progress,  not  to  ring 
gongs  in  proximity  to  places  of  worship  and  not  to  deprive 
any  of  its  employees  of  one  full  day's  rest  in  every  seven. 
This  contract  hedged  the  company  about  with  so  many  re- 
strictions that  the  Sabbatarians  were  outvoted,  though  they 
alleged  afterward  that  this  result  had  been  attained  through 
the  aid  of  irreligious  elements  and  the  Jews.  They  there- 

51  Laws  of  Missouri  of  1856-57,  p.  673. 

62  The  question  \vas  submitted  at  three  separate  elections,  on  January 
4,  1892,  August  2,  1893,  and  May  15,  1897.  The  proposal  was  rejected 
at  the  first  two  pollings  but  accepted  at  the  third,  in  1897. 


ON  LIQUOR  LAWS  AND  VEXED  QUESTIONS 

upon  began  a  systematic  boycott  of  the  company  and  it  is 
stated  that  the  residents  of  Toronto,  even  when  on  their  way 
to  church,  have  put  themselves  to  the  greatest  inconvenience 
in  order  to  avoid  riding  on  the  Sunday  street  cars.  On  other 
days  of  the  week  they  have  patronized  the  company's  lines 
as  before.  Many  of  those  who  have  regarded  this  Sunday 
service  as  a  desecration  of  the  Sabbath  are  eager,  it  is  said, 
for  another  election  on  the  subject  when  they  confidently 
expect  that  there  will  be  a  more  Christian  result.  In  no  tem- 
perance "  fight  "  under  a  local  option  law  in  an  American 
town  or  village  could  more  unpleasantness  and  personal 
feeling  be  injected  into  an  electoral  campaign.53 

For  a  long  time  organizations  of  Socialists  and  labor 
unions  have  demanded  that  legislatures  should  make  eight 
hours  a  legal  day's  work.  As  the  first  step  they  have  insisted 
that  the  government  should  set  the  example  by  paying  those 
whom  it  itself  employs  a  full  day's  wage  for  an  eight-hour 
day.  These  influences  having  made  themselves  a  source  of 
political  strength  in  Massachusetts  the  legislature  of  the  State 
in  1899  was  induced  to  pass  a  conditional  law  on  the  subject, 
thus  submitting  an  embarrassing  issue  to  the  people  of  the 
cities  and  towns,  without  compromising  itself  by  showing 
favor  on  either  side.54 

cs  Cf.  Laws  of  Ontario  for  1892,  p.  888;  ibid.,  1894,  p.  450;  ibid., 
1897,  pp.  618  et  seq.  I  am  informed  by  Mr.  J.  J.  Cassidey  of  Toronto 
that  the  opposition  to  the  Sunday  cars,  as  might  be  expected  is  grad- 
ually dying  out,  while  the  people  of  the  city  are  now  very  generally 
riding  in  them.  It  is  unlikely,  therefore,  that  the  privilege  which  the 
company  has  won  after  so  long  a  contest  will  be  withdrawn  from  it 
again,  since  the  convenience  of  the  service  has  come  to  be  appreciated 
by  the  citizens. 

64  Acts  and  Resolves  of  Mass.,  1899,  p.  299.  The  full  text  of  this 
curious  law  is  as  follows :  "  Be  it  enacted,  etc. — Sec.  i,  Eight  hours 
shall  constitute  a  day's  work  for  all  laborers.,  workmen  and  mechanics 
now  employed  or  who  may  hereafter  be  employed  by  or  on  behalf 
of  any  city  or  town  in  this  Commonwealth.  Sec.  2,  All  acts  and  parts 
of  acts  inconsistent  herewith  are  hereby  repealed.  Sec.  3,  This  act  shall 
not  take  effect  in  any  city  or  town  until  accepted  by  a  majority  of  the 
voters  voting  thereon  at  an  annual  election.  Such  vote  shall  be  taken 
by  ballot.  When  so  accepted  this  act  shall  take  effect  from  the  date 
of  such  acceptance." 


3°4  THE  REFERENDUM  IN  AMERICA 

A  peculiar  referendum  has  made  its  way  into  the  municipal 
law  of  the  State  of  Massachusetts  with  the  recent  develop- 
ment of  electric  street  railways.  While  there  is  assumed  to 
be  no  valid  objection  to  the  use  of  the  streets  by  companies 
propelling  cars  by  electricity  when  they  carry  passengers,  and 
not  goods  or  luggage  commonly  classed  as  freight  or  express 
matter,  their  rights  respecting  the  transport  of  the  latter  are 
sometimes  extended  upon  popular  vote.  Thus  the  legislature 
of  Massachusetts  enacts  that  "  the  Northampton  Street  Rail- 
way Company  may  act  as  a  common  carrier  of  small  parcels 
provided  said  company  shall  not  so  act  in  the  city  of  North- 
ampton, or  in  any  town  until  authorized  to  do  so  by  a  two- 
thirds  vote  of  the  voters  of  said  city  or  town  present  and 
voting  thereon  at  an  annual  or  special  election  held  for  that 
purpose  ",55 

A  company  authorized  to  operate  an  electric  street  rail- 
way line  through  the  cities  of  Taunton  and  Brockton  in 
Massachusetts  is  placed  under  the  same  restriction  in  respect 
of  a  parcels  service.56  In  cities  and  towns  of  less  than  25,000 
inhabitants  in  Louisiana  the  streets  must  be  kept  altogether 
free  from  car  lines  unless  the  people  shall  approve  of  the 
grants  to  companies  applying  for  the  right  of  way.  Any 
railroad  or  other  corporation  desiring  "  to  use  and  occupy 
the  streets  and  alleys  "  of  a  town  or  city  or  "  to  obstruct 
the  same  or  any  part  thereof  with  buildings  necessary  to  and 
used  by  said  corporations  "  must  seek  the  direct  popular 
sanction.57  On  a  favorable  vote  of  the  people  Boston  street 
railway  companies  were  authorized  to  replace  tracks  on 
Tremont  and  Boylston  streets  in  that  city  which  had  earlier 
been  removed  in  obedience  to  an  order  of  the  Boston  Transit 
Commission.58  Occasionally,  too,  a  proposition  "  to  close  " 
a  street  or  alley  in  a  city  or  town  is  submitted  to  popular 
vote.59  In  the  city  of  Youngstown,  O.,  the  question  of  ma- 

65  Acts  of  Mass.,  1896,  p.  394.          58  Acts  of  Mass.,  1896,  p.  494. 

BT  Laws  of  Louisiana,    1896,  p.    113. 

68  Acts  and  Resolves  of  Mass..  1899,  p.  390, 

w  Cf.  Laws  of  Maryland  of  1890,  p.  303. 


ON  LIQUOR  LAWS  AND  VEXED  QUESTIONS     3°5 

king  a  grant  to  a  street  car  company  to  run  its  lines  over  a 
new  bridge  was  recently  the  subject  of  a  referendum.60 
Before  this  question  could  be  submitted  to  the  people  a  pe- 
tition must  issue  from  the  owners  of  more  than  half  of  the 
land  fronting  on  the  street  through  which  the  cars  would 
run.  They  must  declare  that  in  their  opinion  the  railway 
would  be  a  benefit  to  them,  or  at  any  rate,  would  do  no  harm 
to  their  interests  in  contiguous  property. 

We  meet,  too.,  with  a  case  of  still  another  kind  in  Kansas 
where  the  aesthetic  sense  of  the  people  in  local  communities 
is  put  in  the  balance  and  weighed  against  a  narrow  pecuniary 
interest.  In  counties  the  citizens  in  their  wisdom  may  decide 
whether  the  owners  of  land  bordering  on  public  highways 
shall  keep  their  hedges  "  cut  and  trimmed  down  to  not  over 
five  feet  high  except  trees  not  less  than  sixteen  feet  apart, 
and  hedges  necessary  as  a  protection  to  orchards,  vineyards 
and  feed  lots  " ;  also  whether  these  owners  shall  "  cut  the 
weeds  "  in  the  public  highways  lying  next  their  lands  "  before 
they  go  to  seed  ",  a  measure  which  is  of  much  practical  im- 
port to  agriculturists,  as  well  as  being  in  the  interest  of  a 
cleaner  and  prettier  countryside.61 

The  Ohio  legislature  recently  authorized  a  peculiar  local 
referendum.  For  some  years  inventors  have  been  engaged 
in  their  experiments  with  "  voting  machines  ",  i.  e.,  mechan- 
ical contrivances  for  receiving  and  recording  votes.  So  uni- 
versal has  the  application  of  machinery  now  become,  and  so 
generally  has  it  substituted  man's  manual  processes  in  many 
different  fields  that  there  is  immediate  prospect  of  an  entire 
revolution  also  in  our  voting  systems.  In  a  number  of 
States  these  machines  have  already  been  introduced  in  a  pro- 
visional way  and  other  States  seem  to  have  the  change  in 
contemplation.  As  a  method  of  keeping  correct  account  of 
the  number  of  votes  cast,  and  of  furnishing  the  returns  to 
the  election  officers  quickly  and  accurately  after  the  polls 
close,  this  mechanical  device  is  held  to  possess  many  im- 

60  Laws  of  Ohio  of  1896.  p.  620. 

81  Webb's  General  Statutes  of  Kansas,  chap.  153,  sees.  47  et  seq. 


3°6  THE  REFERENDUM  IN  AMERICA 

portant  advantages.  In  Ohio,  however,  the  State  legislature 
did  not  desire  to  endorse  the  new  invention  unqualifiedly,  nor 
yet  to  allow  the  local  boards  to  do  so.  It  passed  a  law  there- 
fore in  1898  authorizing  the  officers  whose  task  it  is  in 
cities,  villages,  towns,  precincts  or  other  local  divisions  of  the 
State  to  supply  ballots  and  other  equipment  for  elections,  to 
submit  to  the  people  of  these  districts,  a  proposition  for  the 
purchase  and  use  of  the  machines.  These  officers  should  take 
note  of  the  vote  and  govern  themselves  accordingly  in  obe- 
dience to  the  popular  will.62 

There  are  conditional  laws  too  on  the  subject  of  a  reform 
of  the  civil  service  in  cities  which  is  so  essential  to  the  proper 
administration  of  the  government  that  only  timidity  and 
weakness  on  the  part  of  a  legislature  would  lead  it  to  submit 
such  a  question  to  popular  vote.63  The  legislature  of  Ne- 
braska desiring  to  introduce  the  Swiss  systems  of  the  initia- 
tive and  the  referendum  into  cities  and  other  local  districts 
of  the  State  did  not,  however,  have  the  full  courage  of  its 
convictions.  It  only  passed  the  law  contingent  upon  its  later 
submission  to  and  approval  by  the  people  in  the  various 
local  communities.64  Recently  in  Wisconsin  a  law  to  regu- 
late the  nomination  of  candidates  at  party  meetings  or  cau- 
cuses, a  measure  of  a  type  likely  soon  to  become  more  fa- 
miliar in  this  country,  devised  with  the  view  of  "  reforming 
the  primaries  "  and  of  reclaiming  popular  government  in 
America  from  its  enemies  was  referred  to  the  people  of  cer- 
tain cities  of  the  State.  If  this  were  a  reform  in  our  political 
practice  of  which  we  had  need  the  legislature  could  have  had 
no  valid  motive  in  submitting  the  proposition  to  any  other 
authority.  Only  lack  of  conviction,  a  desire  to  evade  respon- 
sibility, and  avoid  offense  to  unworthy  elements  in  the  elec- 
torate, will  explain  conditional  legislation  of  this  kind.65 

The  discussion  of  this  subject,  as  it  relates  to  acts  of  the 

02  Session  Laws  of  Ohio,  1898,  p.  277. 

03  Cf.  Starr  and  Curtis'  Illinois  Statutes,  p.  826. 
64  Compiled  Statutes  of  Nebraska,  p.  591. 

66  Sanborn  and  Berryman's  Wisconsin  Statutes,  chap.  5,  sec.  in. 


ON  LIQUOR  LAWS  AND  VEXED  QUESTIONS      3°7 

State  legislature  in  reference  to  specific  matters  submitted 
to  popular  vote  in  local  districts,  having  now  been  brought 
to  a  conclusion  it  is  of  a  very  great  deal  of  interest  to  record 
the  progress  of  a  movement  to  introduce  the  referendum  in 
a  general  form  into  the  local  governmental  practice  of  this 
country.  Just  as  South  Dakota  alone  is  the  pioneer  with  a 
general  referendum  on  State  laws,  so  Iowa,  California  and 
Nebraska,  as  well  as  South  Dakota,  have  taken  up  an  ad- 
vanced position  with  respect  to  a  general  referendum  on  local 
by-laws  passed  by  the  local  legislature.  It  will  be  advisable 
at  this  point  to  draw  a  very  clear  distinction  between  two 
kinds  of  local  laws.  Thus  far  our  treatment  of  the  local 
referendum  has  related  for  the  most  part  to  laws  in  regard 
to  local  districts  which  have  been  passed  by  the  State  legisla- 
ture. In  South  Dakota,  Iowa,  California  and  Nebraska, 
however,  the  referendum  applies  to  laws  which  originate 
with  the  local  boards  and  assemblies.  While  it  is  held  that 
the  legislature  may  submit  laws  of  concern  to  local  com- 
munities to  the  people  thereof  and  make  their  going  into 
effect  depend  upon  a  favorable  vote  at  the  referendum,  no 
local  board,  or  council  can  make  such  a  submission  of  a 
proposition  except  it  receives  direct  and  explicit  authori- 
zation from  one  or  other  of  the  law-making  agents  of  the 
State,  the  constitutional  convention  or  the  legislature.  In 
South  Dakota,  Iowa,  California  and  Nebraska,  it  must  be 
noted,  such  a  privilege  has  been  conferred  upon  the  local 
legislative  committees  and  assemblies  in  general  terms,  and 
their  power  to  exercise  it  is  not  open  to  question.  In  Iowa, 
for  instance,  it  appears  that  the  "  Board  of  Supervisors  " 
or  governing  board  of  any  county,  may,  on  its  own  initia- 
tion, or  must,  when  petitioned  so  to  do  by  at  least  one  fourth 
of  the  voters  of  the  county,  submit  to  popular  vote  either  at 
a  regular  or  at  a  special  election  "  the  question  whether 
money  may  be  borrowed  to  aid  in  the  erection  of  any  public 
buildings,  and  the  question  of  any  other  local  or  police  regula- 
tion not  inconsistent  with  the  laws  of  the  State ".  The 
"  regulation ",  or  ordinance  must  be  advertised  for  four 


308  THE  REFERENDUM  IN  AMERICA 

weeks  in  some  newspaper  printed  in  the  county,  or  if  there 
be  no  newspaper,  it  may  be  legally  published  by  posting  it 
up  for  thirty  days  "  in  at  least  one  of  the  most  public  places 
in  each  township  in  the  county  and  in  addition  in  at  least  five 
among  the  most  public  places  in  the  county  ".  Propositions 
and  local  measures  adopted  in  this  manner  may  also  be  re- 
scinded upon  the  initiation  of  the  people  and  a  subsequent 
referendum  in  which  a  majority  of  the  electors  of  the  county 
shall  vote  in  favor  of  such  rescission.66 

Likewise  in  California  on  the  presentation  of  a  paper  or 
papers  bearing  the  signatures  of  the  legal  voters  of  any 
county  "  equal  in  number  to  fifty  per  cent,  of  the  votes  cast 
at  the  last  preceding  general  election  ",  the  Board  of  Super- 
visors must  submit  to  the  people  any  ordinance  for  whose 
submission  the  petition  makes  a  request.67  The  new  free- 
holders' charter  of  San  Francisco,  recently  framed  to  super- 
sede a  charter  and  the  amendments  thereto  which  had  been 
received  direct  from  the  State  legislature,  provides  for  a  poll 
of  the  people  on  city  ordinances  and  charter  amendments 
when  an  election  on  these  measures  is  petitioned  for  by  a 
prescribed  number  of  citizens.  All  bills  to  grant  franchises 
to  private  companies  "  for  the  supply  of  light  or  water,  or 
for  the  lease  or  sale  of  any  public  utility,  or  for  the  pur- 
chase of  land  of  more  than  $50,000  in  value  must  be  sub- 
mitted to  the  electors  "  of  San  Francisco.  This  referendum 
is  compulsory  and  no  petition  is  necessary.68 

The  Legislature  of  Nebraska  recently  introduced  the  in- 
itiative and  the  referendum  in  that  State,  on  by-laws  in 
cities  and  "other  municipal  subdivisions"  (counties,  towns, 
villages,  school  districts,  etc.)  in  the  Swiss  form  and  by  the 
Swiss  name.  Any  ordinance,  order,  resolve,  agreement, 
contract  or  other  legislative  measure  which  is  proposed  by 
15  per  cent,  of  the  voters  of  a  city  or  other  local  district 

68  Code  of  Iowa,  sees.  443  ct  '  -,q. 
87  Statutes  of  California  i-  i^.  ).  348. 

08  Charter  for  the  C>y  ~— „:  -  ~~^tY  of  San  Francisco,  1898,  art.  ii, 
sees.  20,  21  and  22. 


ON     LIQUOR  LAWS  AND  VEXED  QUESTIONS      3°9 

must  be  submitted  to  the  people  thereof  at  a  regular  election. 
If  a  greater  number,  or  at  least  20  per  cent,  of  the  electors, 
sign  the  petition  a  special  election  to  decide  the  question  may 
be  held.  Respecting  ordinances  which  have  been  initiated 
by  the  local  legislatures  themselves  and  have  been  duly  en- 
acted by  these  bodies,  none  shall  go  into  force  until  thirty 
days  after  its  passage.  If  within  that  time  a  petition  signed 
by  15  per  cent,  of  the  voters  of  the  city  or  other  local  district, 
asking  for  a  referendum  on  the  subject,  is  presented  to  the 
duly  authorized  officers  it  must  be  submitted  to  popular  vote 
at  a  regular  election ;  again  if  the  number  signing  the  pe- 
tition equals  20  per  cent,  of  the  voters  a  special  election  may 
be  called.  Urgent  measures  relating  to  the  "  preservation 
of  public  peace  or  health  ",  however,  are  expressly  excepted 
from  these  provisions.  Furthermore  the  mayor  and  city 
council,  without  waiting  to  receive  a  petition,  may  at  any 
time  at  their  own  instance  call  an  election  in  regard  to  any 
question  upon  which  they  desire  advice  from  the  citizens  at 
large.  The  entire  law  is  itself  conditioned  upon  its  direct 
acceptance  by  the  people  in  the  various  cities,  counties,  towns, 
etc.,  of  Nebraska.  The  referendum  thus  curiously  is  itself 
the  subject  of  a  referendum.69 

The  recent  amendment  to  the  Constitution  of  South  Da- 
kota which  introduces  the  Swiss  initiative  and  referendum 
in  respect  of  State  laws,  to  which  allusion  has  been  made  in 
an  earlier  chapter,  is  also  of  application  to  municipalities.  It 
contemplates  that  five  per  cent,  of  the  voters  in  any  local 
district  may  originate  and  have  submitted  to  popular  vote 
any  local  ordinance  which  may  suggest  itself  to  them,  and 
also  that  five  per  cent,  of  the  electors  may  demand  a  refer- 
endum on  any  law  which  has  already  been  passed  by  the  local 
governing  board  or  council.70 

It  is  to  be  noted  in  summarizing  this  particular  section 
of  our  subject  that  the  referendum  on  local  questions  in  the 
counties  of  Iowa  and  California  is  purely  an  American  de- 

68  Compiled  Laws  of  Nebraska,  pp.  588  et  seq. 

70  Session  Laws  of  South  Dakota,   1897,  pp.  88-89. 


3io 


THE  REFERENDUM  IN  AMERICA 


velopment  in  line  with  ouf  own  tendencies  and  traditions. 
In  San  Francisco,  Nebraska  and  South  Dakota,  on  the  other 
hand,  it  is  clearly  an  importation,  an  adaptation  of  the  Swiss 
system  for  which  American  politicians  of  a  certain  type  have 
lately  expressed  so  much  interest  and  admiration.  Their 
agitations  are  now  beginning  to  bear  fruit  in  many  parts  of 
the  "  Great  West  ". 


CHAPTER  XIII 

THE  LOCAL  REFERENDUM IS  IT  CONSTITUTIONAL? 

HAVING  traced  the  historical  development  of  law-making 
by  popular  vote  as  it  bears  directly  upon  local  government 
in  the  United  States  we  come  at  once  to  the  consideration 
of  another  question — the  regularity  and  validity  of  the 
system,  especially  from  the  view-point  of  the  courts. 
We  have  to  inquire  if  the  referendum  on  local  laws 
in  local  communities  is  constitutional.  It  has  been  noted 
already  in  another  place  that  the  weight  of  judicial 
opinion  is  quite  strongly  against  the  submission  of  laws 
to  popular  vote,  when  they  are  general  State  laws  of 
application  to  the  entire  State.  On  a  plain  issue  of 
this  kind  the  courts,  so  far  as  they  have  gone  in  the  matter, 
are  disposed  to  discourage  conditional  legislation  of  such  a 
character,  on  the  ground  that  it  is  a  delegation  of  power  to 
a  foreign  body  which  is  not  known  to  the  constitution. 
When  the  constitution  of  a  State  specifically  declares  that  the 
law-making  power  shall  repose  in  a  representative  legislature 
under  definite  conditions  and  regulations,  it  is  assuredly  not 
competent  for  the  legislature  to  decline  to  perform  the  task 
to  which  it  has  been  assigned  and  pass  it  on  to  some  other 
agent.  Nevertheless  various  methods  of  evading  the  rule 
have  gradually  come  into  vogue  in  the  course  of  the  develop- 
ment of  local  government  in  the  United  States,  and  although 
there  can  be  little  disagreement  as  to  the  unconstitutionality 
of  the  submission  to  popular  vote  of  a  general  State  law, 
such  as  the  New  York  Free  School  Law  of  I849,1  there -are 
roundabout  means  to  an  end. 

A  discussion  of  the  question  of  the  constitutionality  of  the 

1  Cf.   Barto  v.   Hirarod,  4   Seld.  483. 

3H 


312  THE  REFERENDUM  IN  AMERICA 

referendum  excepts  those  cases,  of  course,  in  which  the  repre- 
sentative legislatures  divide  the  legislative  power  with  the 
citizens  at  large  by  authority  derived  from  the  State  consti- 
tution. Although  the  referendum  may  still  be  out  of  harmony 
with  our  unwritten  English  law  which  places  the  legislative 
power  of  the  State  in  the  hands  of  representatives,  on  the 
theory  that  a  few  of  the  wisest  and  most  capable  can  legislate 
more  intelligently  than  the  whole  unorganized  electorate, 
it  is  at  any  rate  "  constitutional "  in  the  American  sense,  if 
the  written  constitutions  expressly  confer  such  a  right  upon 
the  people. 

We  are  to  discuss  the  case,  however,  of  laws  which  are 
passed  by  the  State  legislature  subject  to  later  ratification 
by  popular  vote,  when  no  authorization  for  such  a  submission 
is  contained  in  the  constitution,  and  when  the  measures  apply 
to  local  subdivisions  of  the  State.  The  question  is  then  as 
to  the  constitutionality  of  "  local  option  "  laws,  an  expressive 
designation  for  legislation  of  this  kind,  in  popular  parlance, 
though  without  reason,  restricted  to  prohibitory  liquor  laws 
which  are  referred  to  the  electors  in  counties,  towns  and  other 
local  districts.  It  need  scarcely  be  said  that  the  term  may 
have  a  very  much  wider  use  and  it  is  convenient  to  extend 
its  meaning  and  scope  in  this  place.  There  are  various  kinds 
of  local  option  laws,  and  I  refer  here  not  to  the  subject  of  the 
law,  but  to  the  form  in  which  it  is  submitted  to  popular  vote. 
There  is  the  case  ( i )  of  special  laws  passed  by  the  legislature 
with  respect  to  some  locality  particularly  designated.  These 
laws  are  very  numerous  in  the  few  States  in  which  special 
legislation  is  still  permitted.  Thus  an  act  adopted  by  the 
legislature  of  Maryland,  providing  for  the  issue  of  bonds 
in  a  certain  town  for  the  purpose  of  enabling  the  municipal 
authorities  to  subscribe  to  the  capital  stock  of  a  railway  com- 
pany, prescribes  that  it  shall  be  referred  to  the  people  and 
"  if  a  majority  of  the  votes  "  given  in  at  the  election  on  the 
question  shall  be  "  in  favor  of  this  act  then  the  same  shall 
forthwith  go  into  effect  ".2  A  law  recently  enacted  by  the 

3  Laws  of  Maryland,  1894,  p.  884. 


IS  THE  LOCAL  REFERENDUM  CONSTITUTIONAL? 

legislature  of  Massachusetts  provides  that  "  so  much  of  this 
act  as  authorizes  the  submission  of  the  question  of  its  accep- 
tance to  the  legal  voters  of  said  city  shall  take  effect  upon  its 
passage  but  it  shall  not  take  further  effect  unless  accepted 
by  the  legal  voters  of  said  city  as  herein  prescribed  ".3  Of 
course  a  very  large  number  of  cases  of  this  kind  might  be 
cited.  The  legislature  thus  clearly  submits  a  local  law  to 
another  agent  not  clothed  by  the  constitution  with  law-ma- 
king power,  i.  e.,  the  people  in  a  body.  The  legislature  en- 
acts no  law ;  it  merely  submits  a  project  of  a  law,  unless,  if 
you  choose,  it  definitively  enacts  that  portion  of  the  measure 
which  prescribes  a  method  by  which  the  referendum  shall  be 
taken,  a  distinction  not  very  important  or  valuable. 

(2.)  We  have  the  general  local  option  laws  which  apply  to 
all  the  counties,  townships  or  other  local  districts  of  the  State 
(with  perhaps  a  few  designated  exceptions).  These  laws 
exist  in  almost  endless  variety  and  relate  to  the  location  of 
county  seats,  the  sale  of  liquors,  the  restraint  of  live  stock, 
the  issue  of  bonds  for  many  purposes,  the  levy  of  taxes,  the 
choice  of  methods  of  administration  in  reference  to  the  poor 
and  with  regard  to  the  roads,  and  other  questions  of  local 
management.  These  too  are  not  laws  when  they  leave  the 
legislature's  hands.  They  are  mere  projects  of  laws.  They, 
however,  relate  to  a  large  number  of  possible  districts,  any 
one  or  more  of  which  may  bring  the  measure  into  force 
within  the  bounds  of  that  particular  locality.  If  it  is  not 
adopted,  however,  even  by  one  single  district,  the  act  still 
retains  its  place  on  the  statute  books  of  the  State  until  it  is 
repealed  or  amended  by  the  same  power  which  placed  it 
there,  namely  the  legislature.  It  operates,  in  a  sense,  auto- 
matically in  that  any  eligible  locality  on  its  own  initiation, 
through  popular  petition  or  through  its  representative  offi- 
cers, may  make  a  request  for  a  poll  of  the  people  on  the  sub- 
ject. If  the  necessary  majority  is  secured  the  law  comes  into 
force  within  that  one  local  district  and  remains  in  force  until 
it  is  repealed,  by  local  procedure  when  that  is  permitted,  or 

•Acts  of  Massachusetts,  1896,  p.  312. 


3 14  THE  REFERENDUM  IN  AMERICA 

by  the  State  legislature.  For  example  a  law  of  this  kind 
in  South  Dakota  passed  in  1891  provides :  "  If  a  majority 
of  the  electors  at  any  election  shall  have  voted  in  favor  of  the 
proposition  then  all  the  provisions  of  this  act  shall  apply  to 
and  be  in  force  in  such  county  [the  county  in  which  the  vote 
is  taken] .  But  if  a  majority  of  such  electors  shall  have  voted 
against  such  proposition  then  the  provisions  of  this  act  shall 
not  apply  to  such  county  ".4  A  recent  law  in  Missouri  says : 
"  This  act  shall  be  in  force  and  take  effect  only  in  such 
counties  as  shall  adopt  the  same  by  a  majority  of  the  qualified 
voters  who  shall  vote  for  or  against  its  adoption  ".5 

In  order  to  avoid  unfavorable  judicial  opinions  various 
subterfuges  are  sometimes  employed  with  the  result  of  chang- 
ing the  issue  verbally,  if  not  actually  and  in  fact.  Thus  it 
is  sometimes  specified  that  the  act  shall  "  take  effect  imme- 
diately ",  but  that  its  provisions  "  shall  remain  inoperative  " 
until  the  law  is  assented  to  by  a  majority  of  the  legal  electors 
of  those  districts  to  which  it  is  meant  to  apply.6  Again  the 
proposition  sometimes  is  not  to  ratify  a  law,  but  to  abolish 
certain  provisions  of  the  State  code,  or  to  repeal  a  law  already 
definitively  enacted  by  the  legislature.7  In  Missouri  I  have 
found  a  law  which  prescribes  that  "  the  provisions  of  this 
article  are  hereby  suspended  in  the  several  counties  in  this 
State  until  a  majority  of  the  legal  voters  of  any  county  voting 
at  any  general  or  special  election  called  for  that  purpose  shall 
decide  to  enforce  the  same  in  such  county  ".  Here,  curiously 
enough,  the  poll  of  the  people  is  taken,  not  to  enact  the  law, 
but  to  decide  whether  it  shall  be  enforced.8 

(3.)  There  is  local  option  also  according  to  what  may  be 
denominated  the  "  New  Jersey  plan  ",  because  of  the  ex- 
tended use  of  this  kind  of  conditional  legislation  in  that  State. 
This  is  essentially  a  dishonest  form  of  law-making  inasmuch 

4  Laws  of  South  Dakota,   1891,  p.  27. 
6  Session  Laws  of  1893,  p.  227. 
e  Cf .  New  Jersey  Laws  of  1897,  p.  449. 

1  Cf.  Revised  Codes  of  North   Dakota,  sec.    1550,  and  Pennsylvania 
Laws  of  1885,  p.  142. 
8  Revised  Statutes  of  Missouri,  1889,  p.  186. 


IS  THE  LOCAL  REFERENDUM  CONSTITUTIONAL?    3*5 

as  it  professes  to  be  general  in  its  application  to  the  localities, 
while  it  in  reality  is  wholly  special,  creating  great  confusion 
and  conflict  in  a  field  in  which  uniformity  is  much  to  be  de- 
sired. A  law  framed  to  meet  a  need  in  some  particular  in- 
stance which  has  been  brought  to  the  attention  of  certain 
members  of  the  State  legislature  is  passed  in  reference  to 
cities,  boroughs  or  other  local  districts.  This  law  is  "  ac- 
cepted "  or  "  rejected  "  by  the  electors  in  a  referendum.  At 
some  recent  sessions  of  the  New  Jersey  State  legislature 
such  conditional  acts  have  been  passed  in  great  numbers. 
Being  without  general  applicability  either  in  subject  matter 
or  intent  such  legislation  can  only  be  looked  upon  as  vicious 
both  in  principle  and  practice.  It  injects  great  uncertainty 
into  municipal  government  which  above  all  things  should 
be  stable,  pursuing  a  definite  administrative  course.  It  opens 
the  way  to  constant  change  in  charters  and  local  government 
acts  which,  even  if  they  are  first  submitted  to  the 
people  of  the  districts  to  be  affected  by  them,  should 
the  latter  desire  to  avail  themselves  of  the  opportunity 
to  adopt  the  provisions  of  such  a  law,  is  not  the  less 
a  source  of  needless  disorganization.  Conditional  acts 
of  this  kind  have  been  passed  in  rapid  succession  by 
the  legislature  of  New  Jersey  in  reference  to  the  water 
supply  of  cities,  the  drainage  systems,  roads,  streets, 
parks,  the  salaries  of  civil  officials,  taxation,  indebtedness, 
the  purchase  of  land,  etc., — all  subject  to  a  vote  of  acceptance 
by  the  people  of  separate  localities.  Even  the  most  super- 
ficial and  hasty  consideration  of  these  measures  will  serve 
to  indicate  their  special  character  and  confirm  us  in  our  view 
of  the  nature  of  this  kind  of  legislation.9  And  New  Jersey 
is  not  alone  among  the  American  States  in  submitting  laws 
of  this  class  to  popular  vote. 

(4.)  The  "  alternate  law  "  is  a  type  which  is  made  familiar 

•Cf.  General  Statutes  of  New  Jersey,  1896,  pp.  495,  500,  508,  535,  539, 
575,  617,  640,  646,  729,  739..  774,  785,  1504,  1506,  1519,  1524,  1536, 
1537,  1543,  1545,  1548,  1551,  1557,  1558,  2209,  2211,  2618,  2951,  3085. 
Session  Laws  of  New  Jersey  of  1896,  p.  43  ;  ibid.,  1897,  p.  449. 


316  THE  REFERENDUM  IN  AMERICA 

in  the  legal  system  of  several  States.  By  this  method  laws 
are  submitted  in  alternate  forms.  The  legislature  in  this  case 
is  perhaps  more  than  a  proposer  of  the  law.  It  has  already 
taken  definitive  action  in  that  it  prescribes  rules  and  regu- 
lations to  govern  the  subject  at  ordinary  times,  offering,  how- 
ever, an  alternate  law  to  the  qualified  voters  of  the  localities 
which  they  may  adopt  if  they  like.  Upon  a  favorable  vote 
in  any  district  this  alternate  law  comes  into  force  instead  of 
the  definitive  law  earlier  enacted  by  the  legislature.  Such 
a  system  prevails  in  West  Virginia  for  instance  as  regards 
the  management  of  the  public  roads.10  In  one  sense  nearly 
all  local  option  laws  are  alternate  laws.  The  plebiscite  on 
the  subject  of  the  prohibition  of  the  sale  of  alcoholic  liquors 
for  instance  has  this  form,  since  if  the  proposal  to  close  the 
dram  shops  be  defeated  the  license  law  remains  in  force. 
There  is  some  law  on  the  subject  in  nearly  every  mentionable 
case.  Even  though  the  people  should  accept  none  of  the  new 
legislation  proposed  to  them  there  would  not  be  a  complete 
lack  of  legal  system.  From  this  point  of  view,  therefore,  in 
reality  if  not  in  name,  all  local  option  laws  are  "  alternate 
laws  ". 

It  may  be  said  of  course  of  all  these  distinctions  that 
they  relate  entirely  to  unimportant  details  of  form.  I  said 
this  at  the  outset,  and  although  other  modifications  in  the 
textual  form  of  conditional  laws  in  this  country  could  be 
introduced  into  this  classification  I  incline  to  the  belief  that 
this  is  a  sufficiently  accurate  division  of  the  subject  to  illus- 
trate the  general  character  of  such  legislation  as  it  refers  to 
local  communities  in  the  United  States.  Whether  the  laws 
submitted  to  the  people  are  special  or  general,  relate  to  one 
district  or  possibly  fifty  or  sixty,  are  submitted  as  definite 
single  propositions  or  as  whole  acts,  whether  they  are  "  alter- 
nate laws  "  or  laws  which  the  people  may  directly  enact  or 
indirectly  enact  by  repealing  some  existent  provisions  of  a 
code  which  has  earlier  been  passed  by  a  representative  legis- 
lature, the  result  is  always  the  same  from  the  point  of  view 

10  Cf.  Code  of  West  Virginia,  3rd  ed.,   1891,  pp.  332,  338,  344. 


IS  THE  LOCAL  REFERENDUM  CONSTITUTIONAL?    3J7 

of  political  science.  There  are  legal  differences  for  the  jurist 
and  fine  quibbles  for  the  practical  lawyer,  but  technicali- 
ties aside,  it  is  in  all  these  cases  quite  as  if  it  were  stated 
explicitly  in  connection  with  each  separate  law :  "  This  act 
shall  not  take  effect  until  it  shall  have  first  been  ratified  by  the 

qualified  voters  of county  (city,  village,  township, 

etc.)." 

The  question  now  to  be  determined  is  whether  or  not  legis- 
lation of  this  kind  referred  to  the  people  of  the  various  gov- 
ernmental subdivisions  of  a  State  by  the  legislature  of  the 
State  is  constitutional.  When  the  written  State  constitution 
specifically  provides  that  such  a  subject  as  the  location  of  a 
county  seat,  the  changing  of  a  county  boundary  line,  the  an- 
nexation of  one  municipality  by  another,  the  restraint  of  live 
stock,  the  prohibition  of  the  sale  of  alcoholic  beverages  and 
so  forth,  shall  be  submitted  to  the  qualified  electors  no  one 
for  a  moment  doubts  the  legality  of  this  process.  When, 
however,  there  is  no  such  specific  provision  in  the  constitu- 
tion, a  very  important  legal  question  arises,  and  it  requires 
careful  historical  consideration  before  we  shall  be  able  to 
come  to  a  fair  judgment  of  the  case. 

Of  the  large  number  of  judicial  decisions  from  the  highest 
State  courts  on  the  subject  of  law-making  by  popular  vote, 
much  the  greater  part  relate  to  laws  in  reference  to  local  dis- 
tricts submitted  to  a  vote  of  the  people  of  those  local  districts, 
being  therefore  directly  in  point  at  the  present  stage  of  our 
discussion.  Measures  in  reference  to  the  whole  State,  sub- 
mitted to  the  people  of  the  whole  State,  have  been  passed 
upon  by  the  courts  scarcely  a  half  dozen  times  in  the  entire 
history  of  this  government  and  the  subject  in  this  one  of  its 
aspects  has  been  discussed  already  in  its  proper  connection 
on  an  earlier  page.  Very  few  opinions  were  delivered  prior 
to  1850,  since  legislation  of  this  kind  before  that  time  was 
not  common  in  this  country.  What  did  exist  was  not  of  a 
character  to  arouse  animosity  and  lead  to  a  test  of  strength 
between  contending  social  forces  until  conditional  laws  came 
to  be  passed,  levying  higher  taxes  on  the  people  in  order  to 


3l8  THE  REFERENDUM  IN  AMERICA 

carry  out  public  improvement,  and  prohibiting  the  liquor 
traffic,  thus  depriving  some  men  of  their  means  of  obtaining 
a  livelihood  and  interfering  with  other  men's  forms  of  indulg- 
ence and  established  manners  of  life.  Local  option  laws  re- 
specting taxation  and  the  prohibition  of  liquor  selling  are 
to  be  credited  with  having  called  forth  the  vast  majority  of 
American  judicial  opinions  on  the  referendum. 

Before  1850  I  note  eight  opinions  from  the  highest  courts 
of  eight  different  States  in  which  the  question  of  the  validity 
of  the  local  referendum  is  more  or  less  fully  considered  and 
reviewed.  Of  these  eight,  three  relate  to  the  prohibition  of 
the  liquor  trade,  three  to  taxation  or  the  public  subscription 
of  stock  to  private  companies,  and  two  to  other  questions  of 
local  government.  In  six  of  the  eight  cases  the  validity  of 
this  method  of  submitting  local  laws  to  popular  vote  was 
affirmed  and  in  two,  both  cases  arising  out  of  local  option 
liquor  laws,  it  was  denied.  The  first  of  the  eight  opinions 
was  delivered  by  the  Supreme  Court  of  Massachusetts  in 
1826  (Wales  v.  Belcher,  3  Pick.,  508).  A  law  passed  by  the 
Massachusetts  State  legislature  had  referred  the  question  of 
the  jurisdiction  of  certain  courts  in  Boston  to  a  vote  of  the 
people  of  the  city.  A  point  having  been  raised  in  regard  to 
the  constitutionality  of  such  legislation  the  Supreme  Court 
said:  "  This  objection  [to  the  law]  for  aught  we  see  stands 
unsupported  by  any  authority  or  sound  judgment.  Why 
may  not  the  legislature  make  the  existence  of  an  act  depend 
upon  the  happening  of  any  future  event?  Constitutions 
themselves  are  so  made ;  the  representative  body  in  convention 
or  other  form  of  assembly  fabricates  the  provisions,  but  they 
are  nugatory  unless  at  some  future  time  they  are  accepted  by 
the  people.  Statutes  incorporating  companies  are  made  to 
derive  their  force  from  the  previous  or  subsequent  assent  of 
the  bodies  incorporated.  A  tribunal  peculiar  to  some  section 
of  the  commonwealth  may  be  thought  by  the  legislature  to  be 
required  for  the  public  good  and  yet  may  not  be  acceptable 
to  the  community  over  which  it  is  established.  We  see  no 


IS  THE  LOCAL  REFERENDUM  CONSTITUTIONAL?    319 

impropriety,  certainly  no  unconstitutionally,  in  giving  the 
people  the  opportunity  to  accept  or  reject  its  provisions." 

In  an  opinion  from  the  Court  of  Appeals  of  Virginia  in 
1837  (Goddin  v.  Crump,  8  Leigh,  120),  in  a  case  arising 
from  a  law  which  gave  to  the  people  of  the  city  of  Rich- 
mond the  right  to  assent  to  or  reject  a  proposition  for  the 
public  subscription  of  stock  to  a  canal  company  the  same 
principle  was  affirmed.  In  Maryland  in  1844  (Burgess  v. 
Pue,  2  Gill,  n),  the  highest  court  of  the  State  delivered  an 
opinion  favorable  to  a  local  option  law  which  levied  a  tax 
for  school  purposes.  In  Illinois  in  1848  (People  ex  rel.  v. 
Reynolds,  5  Gilm.,  i ) ,  a  case  growing  out  of  a  law  to  divide  a 
county,  and  in  Kentucky  in  1849  (Talbot  v.  Dent,  9  B.  Mon., 
526),  in  an  opinion  induced  by  another  act  authorizing  a 
municipality  to  subscribe  to  the  stock  of  a  private  company 
the  courts  again  sustained  the  legitimacy  of  this  kind  of 
legislation. 

In  June,  1847,  m  Delaware,  however,  the  Court  of  Errors 
and  Appeals  took  up  a  new  position  and  in  unqualified  terms 
pronounced  against  the  constitutionality  of  a  local  option 
liquor  law  which  had  been  passed  by  the  legislature  of  the 
State  in  the  preceding  February  (Rice  v.  Foster,  4  Harr., 
479).  The  entire  subject  was  thoroughly  reviewed  in  its 
fundamentals.  Direct  legislation  by  the  people  was  con- 
trasted with  the  representative  system  of  government.  The 
legislative  power  of  the  State  being  vested  in  the  General 
Assembly  by  the  constitution,  the  judges  declared  that  the 
people  could  not  "  resume  or  exercise  any  portion  of  it ". 
"To  do  so  ",  the  court  continued,  "  would  be  an  infraction 
of  the  constitution  and  a  dissolution  of  the  government ". 
Moreover  if  the  problem  were  considered  on  its  federal  side 
the  Constitution  of  the  United  States  provided  that  Congress 
should  guarantee  to  each  State  "  a  republican  form  of  govern- 
ment ".  This  provision  prohibited  any  State  from  establish- 
ing a  "  democracy  ",  which  would  be  a  natural  result  were 
laws  submitted  to  popular  vote,  a  policy  which  would  "  de- 


320  THE  REFERENDUM  IN  AMERICA 

molish  the  whole  frame  and  texture  of  our  representative 
form  of  government  and  prostrate  everything  to  the  worst 
species  of  tyranny  and  despotism,  the  ever-varying  will  of  an 
irresponsible  multitude  ".  The  Delaware  judges  did  not  per- 
ceive, or  at  rate  failed  to  recognize  in  their  opinion,  any  dis- 
tinction between  laws  of  a  general  character  relating  to  the 
whole  State  and  submitted  to  the  people  of  the  whole  State, 
and  local  option  laws.  They  in  fact  denied  the  whole  con- 
tention, declaring  that  if  the  legislature  could  refer  one  sub- 
ject to  a  vote  of  the  people  it  could  just  as  well  so  refer  all 
subjects.  There  was  in  the  court's  view  no  middle  ground 
which  might  be  occupied  harmoniously  with  the  established 
system  of  government  in  the  American  States. 

A  very  few  months  later,  in  November,  1847,  tne  highest 
court  in  Pennsylvania  passed  judgment  on  a  local  option 
liquor  law  similar  to  that  which  had  drawn  forth  the  notable 
decision  in  Delaware.  This  court  also  denied  the  whole 
proposition  generally  and  without  qualification  or  reserve 
(Parker  v.  Commonwealth,  6  Barr.,  507).  The  opinion  put 
the  court  so  far  out  of  line  with  later  developments  respecting 
this  subject  indeed,  that  they  were  led  to  declare,  that,  for  the 
legislature  to  surrender  the  law-making  power  to  the  citizens 
at  large  in  the  local  communities,  was  even  less  permissible 
than  for  it  to  resign  its  functions  in  favor  of  the  people  of 
the  whole  State.  "  It  is  a  duty  [i.  e.}  the  duty  of  making 
laws]  which  cannot  be  transferred  by  the  representative  ", 
the  judges  said,  "  no  not  even  to  the  people  themselves,  for 
they  have  forbidden  it  by  the  solemn  expression  of  their  will 
that  the  legislative  power  shall  be  vested  in  the  General 
Assembly ;  much  less  can  it  be  relinquished  to  a  portion  of  the 
people  who  cannot  even  claim  to  be  the  exclusive  depositories 
of  that  part  of  the  sovereignty  retained  by  the  whole  com- 
munity ". 

A  local  option  liquor  law  of  precisely  the  same  character 
led  to  an  important  opinion  by  the  Supreme  Court  of  Ver- 
mont in  1849  (Bancroft  v.  Dumas,  21  Vt.,  456).  The  court 
here  took  a  quite  opposite  view  of  the  question  and,  as  re- 


IS  THE  LOCAL  REFERENDUM  CONSTITUTIONAL?   321 

gards  the  general  proposition,  declared  that  it  was  "  in  ac- 
cordance with  the  theory  of  our  government  that  all  our  laws 
should  be  made  in  conformity  to  the  wishes  of  the  people  ". 
It  could  "  surely  then  be  no  objection  to  a  law  that  it  is  ap- 
proved by  the  people  ".  Passing  to  a  more  specific  treatment 
of  the  subject  the  court  continued:  "We  believe  that  it 
has  never  been  doubted  that  it  is  competent  for  the  legislature 
to  constitute  some  tribunal  or  body  of  men  to  designate 
proper  persons  for  innkeepers  and  retailers  of  ardent  spirits  " 
and  "  if  the  legislature  could  legally  and  constitutionally  sub- 
mit the  question  of  whether  licenses  should  be  granted  to  the 
determination  of  a  portion  of  the  people  [i.  e.,  to  the  mem- 
bers of  some  local  board  or  tribunal],  could  they  not  with 
equal  if  not  greater  propriety  submit  it  to  the  decision  of  the 
whole  people  "  ?  Continuing  the  court  explained  that  "  laws 
are  often  passed  and,  by  the  terms  of  the  statute,  made  to  take 
effect  upon  the  happening  of  some  event  which  is  expected 
to  occur  ",  but  they  were  "  not  aware  that  such  laws  for  that 
reason  had  been  regarded  as  invalid  ". 

From  1850  onward  stripping  the  various  decisions  re- 
specting laws  of  this  kind  of  needless  verbiage  and  techni- 
cality, which  have  been  called  forth  in  specific  instances  for 
one  reason  or  another  not  germane  to  the  discussion,  some 
conclusions  may  be  arrived  at  of  a  rather  absolute  character 
as  regards  the  trend  of  judicial  opinion  on  the  subject  of  the 
referendum  in  the  United  States.  In  nearly  all  the  States 
in  the  Union  the  courts  have  considered  and  discussed  this 
question,  and  the  tendency  has  been  distinctly  favorable  to 
this  kind  of  legislation.  Since  1850  we  find  opinions  in  only 
four  States  which  are  adverse  to  law-making  by  popular  vote 
in  local  districts.  These  are  California,  Indiana,  Iowa  and 
Texas,  Iowa  being  the  most  notable  for  the  number  of  de- 
cisions in  which  the  court  have  consistently  followed  their 
own  precedents.  The  leading  cases  in  which  unfavorable 
opinions  have  been  delivered  in  the  four  States  named  are 
Ex-parte  Wall11  in  California;  Maize  v.  The  State12  and 

"48  Cal.  279.        "4Ind.  342. 


322  THE  REFERENDUM  IN  AMERICA 

Greencastle  Township,  etc.  v.  Black13  in  Indiana ;  Geebrick  v. 
State,34  State  v.  Weir15  and  Weir  v.  Cram16  in  Iowa;  State  v. 
Swisher17  in  Texas.  As  Rice  v.  Foster  and  Parker  v.  Com- 
monwealth, in  Delaware  and  Pennsylvania  respectively,  date 
from  a  period  anterior  to  1850,  so  all  the  later  cases  except 
one  California,  one  Missouri  and  two  Iowa  cases  are  earlier 
than  1860.  The  most  recent  of  the  opinions,  and  also  one 
of  the  most  vigorous  in  the  series,  is  that  in  the  case  of  Ex- 
parte  Wall  in  California  in  1874.  As  the  opinion  in  Parker 
v.  Commonwealth  in  Pennsylvania  was  soon  modified,  and 
in  1874  in  Locke's  Appeal18  directly  reversed,  so  there  has 
been  a  like  tendency  at  work  in  other  States.  The  line  of 
argument  which  the  court  had  laid  down  in  Indiana  in 
Maize  v.  The  State,  etc.,  was  gradually  departed  from  until 
in  Groesch  v.  The  State,19  quite  new  ground  was  found. 
State  v.  Swisher  in  Texas  was  directly  overruled  in  1883  by 
the  Court  of  Appeals,20  and  in  California  both  prior  to  and 
since  the  opinion  in  the  case  of  Ex-parte  Wall  there  have 
been  decisions  in  favor  of  the  referendum  in  municipalities 
and  other  local  districts.  In  Iowa  where  a  view  hostile  to  the 
constitutionality  of  such  laws  has  been  most  persistently  held, 
it  having  been  reasserted  by  the  court  on  many  different 
occasions,  there  have  been  not  infrequent  departures  from  the 
general  principle.  The  court  on  account  of  their  vacillating 
policy  with  respect  to  this  subject  have  been  led  into  many 
conflicting  opinions.  Geebrick  v.  State  and  the  later  cases 
would  seem  finally  to  have  been  reversed  in  1895  in  State 
ex  rel.  Witter  v.  Forkner,  94  Iowa,  i ,  when  there  was  a  thor- 
ough judicial  review  of  a  prohibitory  liquor  law  which  was 
known  as  the  "  Mulct  Law  ",  a  kind  of  legislative  subter- 
fuge for  "  local  option  ",  as  regards  the  sale  and  manufacture 
of  alcoholic  beverages.  Unless  another  tendency  should 
later  set  in,  there  is  then  every  reason  for  the  belief  that, 

13  5  Ind.  557.        "  5  Iowa,  491. 

15  33   Iowa,   134.         ls  37  Iowa,  649. 

17  17  Texas,  441.         1S  72  Penn.  491. 

u  42   Ind,    547.         20  14  Tex.  Court  of  Appeals,  505. 


IS  THE  LOCAL  REFERENDUM  CONSTITUTIONAL?    323 

supported  by  the  weight  of  authority  of  more  than  a  half 
century,  the  referendum  regarding  local  matters  in  American 
communities  is  now  a  valid  and  constitutional  part  of  our 
system  of  government  in  every  one  of  the  forty-five  States. 

It  is  to  be  noted,  furthermore,  of  these  various  adverse 
opinions  that  nearly  all  were  called  forth  by  local  option  liquor 
laws,  as  in  Rice  v.  Foster,  Parker  v.  Commonwealth,  State 
v.  Swisher,  Geebrick  v.  State,  State  v.  Weir,  and  Maize  v. 
The  State.  If  these  opinions  were  disregarded  the  American 
State  courts  would  be  in  virtual  unanimity  respecting  this 
question.  The  student  who  has  read  after  the  judges  that 
occupy  the  benches  in  our  highest  State  courts  must  conclude 
that  they  are  not  without  personal  bias  in  a  consideration  of 
this  subject.  They  are  wont  to  regard  this  as  an  occasion 
when  their  own  views  respecting  the  liquor-selling  question, 
which  has  aroused  so  much  bitter  feeling  in  American  com- 
munities, should  be  consulted,  and  the  law  in  the  case  is  there- 
fore accorded  a  secondary  place.  There  is  no  escape  from 
the  thought  that  such  opinions  as  E,v-parte  Wall  were  directly 
induced  by  the  personal  interest  of  the  judges  who  if  they 
had  been  asked  to  pass  upon  a  local  option  stock  law,  for  in- 
stance, would  have  found  no  ground  for  their  vigorous  de- 
fence of  constitutional  forms.  When  these  additional  facts 
are  properly  considered  the  evidence  from  the  records  of  the 
courts  seems  the  less  entitled  to  bear  heavily  against  the  sys- 
tem of  law-making  by  popular  vote  in  local  districts  in  this 
country.21 

But  it  is  of  interest  to  inquire  a  little  farther  as  to  the 
grounds  taken  by  the  courts  in  these  various  opinions.  The 
adverse  decisions  are,  of  course,  based  on  the  general  prin- 
ciple enunciated  in  Rice  v.  Foster,  which  certainly  holds  in 
respect  of  laws  not  of  a  local  character  that  might  be  sub- 
mitted to  the  people  of  the  entire  State.  The  courts  in  these 
cases  have  failed  to  recognize  any  distinction  between  legis- 
lation for  the  State  and  legislation  for  local  districts  of  the 
State,  and  have  declared  in  more  or  less  definite  terms  that  the 

21  Cf.  Oberholtzer,  op.  cit.,  pp.  103,  et  seq. 


324  THE  REFERENDUM  IN  AMERICA 

legislature,  being  constituted  a  body  whose  specific  function 
it  is  to  propose,  discuss,  deliberate  upon  and  pass  laws  to 
apply  to  the  districts  under  its  jurisdiction,  cannot  resign  its 
place  in  favor  of  any  other  tribunal  whatsoever,  not  even  the 
people  themselves.  Up  to  this  point  all  authorities  are  in 
agreement,  but  important  modifications  are  subsequently 
introduced  into  the  argument  in  nearly  all  the  States,  as  we 
have  just  noted,  so  that  the  local  referendum  has  gained  a 
secure  foothold  throughout  the  Republic.  These  exceptions 
to  the  general  rule  are  taken  mainly  on  the  following  grounds, 
viz: 

(i.)  That  laws  may  be  passed  whose  going  into  effect  is 
made  to  depend  upon  a  contingency  such  as  the  happening 
of  a  future  event,  or  the  fulfillment  of  a  prescribed  condition. 
This  contingency  then  it  is  argued,  may  as  well  be  a  favorable 
vote  of  the  people  as  anything  else. 

(2.)  That  laws  in  reference  to  a  municipality  or  local  dis- 
trict may  be  enacted  by  the  legislature  at  will,  except  as 
limits  are  established  in  the  State  constitution — and  by  reason 
of  the  legislature's  extensive  powers  in  this  direction,  which 
it  is  not  able  to  exercise  without  the  co-operation  of  some 
mediate  authority,  it  may  call  to  its  aid  the  citizens  at  large. 
It  is  customary  to  delegate  powers  with  respect  to  local  gov- 
ernment to  designated  agents  such  as  the  commissioners  of 
counties,  the  trustees  of  towns,  the  mayors  and  councils  of 
cities,  the  judges  of  local  courts  and  the  officers  of  townships. 
If  such  authority  can  be  conferred  upon  agents  of  this  kind 
why  may  not  others  be  appointed,  as  for  instance,  the  whole 
body  of  voters? 

Respecting  the  first  line  of  argument  which  leads  us  to  a 
deviation  from  the  rule,  the  theory  that  a  contingency  may 
exist,  that  there  may  be  a  condition  precedent  to  the  law's 
taking  effect  which  if  it  is  not  met  will  prevent  it  from  taking 
effect,  there  are  many  opinions  tending  to  support  the  view. 
The  Federal  practice  has  been  pointed  to  as  furnishing  ex- 
amples of  legislation  passed  in  a  conditional  way,  its  going 


IS  THE  LOCAL  REFERENDUM  CONSTITUTIONAL?  32S 

into  force  being  dependent  upon  the  happening  of  some  fu- 
ture event.  One  of  the  first  cases  of  this  kind  on  record, 
Wales  v.  Belcher,  supra,  which  was  decided  in  Massachu- 
setts in  1826,  drew  forth  an  opinion  from  the  Supreme  Court 
of  that  State  of  much  interest  in  this  connection.  The  court 
said  that  a  law  might  recognize  the  existence  of  a  con- 
tingency and  that  this  contingency  might  be  the  acceptance 
by  the  people  of  the  provisions  of  the  act.  The  judges  asked, 
"  Why  may  not  the  legislature  make  the  existence  of  any  act 
depend  upon  the  happening  of  any  future  event?"  and 
added :  "  Constitutions  themselves  are  so  made ;  the  repre- 
sentative body  in  convention  or  other  form  of  assembly  fabri- 
cates the  provisions,  but  they  are  nugatory  unless  at  some 
future  time  they  are  accepted  by  the  people.  Statutes  incor- 
porating companies  are  made  to  derive  their  force  from  the 
previous  or  subsequent  assent  of  the  bodies  incorporated  ", 
etc. 

"  Statutes  incorporating  companies  ",  it  is  well  to  remem- 
ber, are  by  no  means  the  only  laws  which  depend  upon  the 
occurrence  of  a  future  event.  One  of  the  most  common 
forms  is  a  statute  which  is  to  go  into  effect  on  some  future 
day.  The  contingency  in  this  case,  though  the  similitude 
be  a  little  strained,  is  the  arrival  of  a  certain  date.  Such  a 
case  has  been  very  frequently  cited  by  the  State  courts  in  the 
development  of  this  principle,  since  it  was  announced  in  1826 
in  Massachusetts  and  applied  in  defence  of  the  referendum 
in  the  American  States.  There  are  many  laws  furthermore, 
and  their  constitutionality  is  not  called  into  question  on  this 
account,  which  contemplate  that  certain  acts  shall  be  per- 
formed by  local  magistrates  and  administrative  boards.  If 
these  conditions  are  met  and  fulfilled  the  act  goes  into  effect ; 
if  not  it  remains  in  whole  or  in  part  a  dead  letter.  Thus  to 
cite  only  one  concrete  instance,  among  many  which  might 
be  named,  it  was  provided  in  a  law  recently  adopted  by  the 
legislature  of  North  Dakota,  that  "  the  last  five  sections  shall 
take  effect  and  be  in  force  in  each  county  in  this  State  only 


326  THE  REFERENDUM  IN  AMERICA 

upon  a  resolution  to  that  effect  being  adopted  by  the  board 
of  county  commissioners  thereof  ".-2  A  law  in  reference  to 
the  capture  of  sturgeon  in  the  Delaware  River,  approved  by 
the  legislature  of  New  Jersey  in  1895,  provided  in  its  final 
section  "  that  this  act  shall  take  effect  when  similar  acts  shall 
have  been  passed  by  the  legislatures  of  the  States  of  Delaware 
and  Pennsylvania  ",23  Many  similar  cases  might  be  men- 
tioned and  this  method  of  enacting  laws  is  indeed  so  usual 
that  it  has  furnished  a  basis  of  great  strength  for  the  judicial 
view  that  the  contingency  may  as  well  be  the  assent  of  the 
people  to  the  law  as  any  other  event  or  circumstance. 

A  statement  of  this  line  of  argument  which  is  perhaps  as 
clear  and  direct  as  any  to  be  found  in  the  Reports  of  any  of 
the  State  supreme  courts  comes  from  the  Virginia  Court  of 
Appeals.  The  opinion  was  delivered  so  long  ago  as  in  1855 
(Bull  v.  Read,  13  Gratt.,  78).  The  case  grew  out  of  an  act 
establishing  a  system  of  free  schools,  if  the  inhabitants  of  a 
particular  district  of  a  county  should  vote  to  accept  the  pro- 
visions of  the  law.  The  court  in  their  review  of  the  subject 
on  this  occasion  said :  "  It  will  be  conceded  that  the  legis- 
lature may  provide  that  an  act  shall  not  take  effect  until  some 
future  day  named,  or  until  the  happening  of  some  particular 
event,  or  in  some  contingency  thereafter  to  arise,  or  upon 
the  performance  of  some  specified  condition.  The  exigencies 
of  the  government  may  frequently  require  laws  of  this  char- 
acter, and  to  deny  to  the  legislature  the  right  so  to  frame 
them  would  be  unduly  to  qualify  and  impair  the  powers 
plainly  and  necessarily  conferred.  Accordingly  we  find 
this  a  familiar  feature  in  the  legislation  both  of  the  na- 
tional and  State  governments.  .  .  .  The  Non-Intercourse 
acts  of  March  i,  1809,  May  i,  1810,  and  May  2,  1811, 
were  expressly  made  to  depend  upon  the  course  that 
might  be  adopted  by  England  and  France  with  regard 
to  the  edicts  promulgated  by  them,  to  be  made  known 
by  proclamation  of  the  president.  And  the  principle 

^-Revised  Codes  of  the  State  of  North  Dakota,  1895,  sec.  1732. 
23  General  Statutes  of  New  Jersey,  pp.   1593-94- 


IS  THE  LOCAL  REFERENDUM  CONSTITUTIONAL?  327 

of  this  mode  of  legislation  was  sustained  by  the  Su- 
preme Court,  Brig  Aurora  v.  United  States,  7  Cranch, 
382.  Nothing  is  more  common  than  for  an  act  of  assembly 
to  be  made  to  commence  upon  a  future  day.  The  code  of 
1849  is  an  instance  of  the  kind.  All  acts  of  incorporation 
are,  in  effect,  acts  to  take  effect  upon  a  future  event,  the  ac- 
ceptance of  the  corporators ;  for  without  their  consent  the 
corporate  body  cannot  be  created.  The  various  acts  making 
subscriptions  on  the  part  of  the  State  to  works  of  internal 
improvement  when  a  certain  amount  shall  be  raised  by  pri- 
vate subscriptions  are  of  this  character.  The  several  acts 
authorizing  the  Baltimore  and  Ohio  Railroad  Company  to 
construct  their  road  through  the  territory  of  Virginia  con- 
tain the  same  feature.  Such  was  the  character  of  the  act  of 
March  3,  1835,  which  authorized  the  county  courts  to  dis- 
pense with  the  first  and  second  sections  of  the  act  in  their 
respective  counties  and  reinstate  the  road  law  of  1819.  Such 
also  was  the  act  of  February  3,  1846,  accepting  the  county 
of  Alexandria  upon  its  retrocession.  Instances  of  the  same 
kind  might  be  multiplied  indefinitely.  Now  if  the  legislature 
may  make  the  operation  of  its  act  depend  on  some  con- 
tingency thereafter  to  happen,  or  may  prescribe  conditions, 
it  must  be  for  them  to  judge  in  what  contingency  or  upon 
what  condition  the  act  shall  take  effect.  They  must  have  the 
power  to  prescribe  any  they  may  think  proper ;  and  if  the 
condition  be  that  a  vote  of  approval  shall  first  be  given  by 
the  people  affected  by  the  proposed  measure  it  is  difficult 
to  see  why  it  may  not  be  as  good  and  valid  as  any  other 
condition  whatever.  There  can  be  no  inherent  vice  in  the 
nature  of  such  a  condition  which  shall  serve  to  defeat  the 
act  when  it  would  be  legal  and  effectual  if  made  to  depend 
upon  some  other  event." 

The  subject  was  so  thoroughly  reviewed  by  the  courts 
years  ago  that  in  recent  opinions  the  fact  that  a  contingency 
may  exist,  and  that  a  favorable  vote  of  the  people  of  a  local- 
ity may  constitute  that  contingency,  is  in  the  nature  of  a  well 
established  maxim.  Thus  in  1895  in  Mississippi,  Lum  v. 


328  THE  REFERENDUM  IN  AMERICA 

Vicksburg,  72  Miss.,  950,  the  court  distinctly  declared  "  that 
a  law  may  become  operative  upon  the  happening  of  a  future 
event,  although  that  contingency  may  be  the  result  of  an 
election  by  the  people,  and  that  this  is  too  well  settled  gen- 
erally, and  in  this  State  particularly,  to  be  now  again  con- 
sidered by  us  ". 

In  Michigan,  to  mention  but  one  more  recent  instance, 
the  Supreme  Court  in  1890,  Feek  v.  Township  Board,  82 
Mich.,  393,  said :  "  The  legislature  in  conferring  upon  the 
board  the  authority  to  pass  such  order  [i.  e.,  an  order  pro- 
hibiting the  liquor  business]  had  the  right  to  prescribe  the 
conditions  under  which  it  might  be  exercised;  and  this  con- 
dition is  that  the  majority  of  the  legal  voters  vote  in  favor 
of  the  proposition.  .  .  Numerous  authorities  might  be  cited 
to  show  that  it  is  legal  and  competent  for  the  legislature 
to  provide  that  a  law  shall  go  into  effect  upon  the  happening 
of  a  contingency,  some  of  which  are  cited  in  the  brief  of  the 
Attorney-General.  The  proposition  is  too  clear  to  need  the 
citation  of  authorities."  24 

As  regards  the  second  line  of  argument  which  rests  upon 
the  admittedly  large  powers  possessed  by  the  State  legis- 

24  Some  of  the  leading  cases  in  the  different  States  in  which  this 
theory  has  been  developed  in  addition  to  those  which  may  have  been 
already  named  are  the  following:  Fell  v.  State,  42  Md.  71  ;  Trammel  v. 
Bradley,  37  Ark.  374;  Blanding  v.  Burr,  13  Cal.  343;  Ex  parte  Wall,  48 
Cal.  279  ;  Mayor  and  Council  of  the  City  of  Brunswick  v.  Finney,  54 
Ga.  317;  Groesch  v.  The  State,  42  Ind.  547;  Santo  v.  State,  2  Iowa, 
165;  Geebrick  v.  State,  5  Iowa,  491  ;  Taylor  v.  McFadden,  84  Iowa,  262; 
Noffzigger  v.  McAllister,  12  Kan.  250;  State  ex  rel.  v.  Hunter,  38  Kan. 
578;  Slack  v.  M'aysville  and  Lexington  Railroad  Co.,  13  B.  Mon.  i; 
Commonwealth  v.  Weller,  14  Bush.  218;  Roos  v.  State,  6  Minn.  291; 
Alcorn  v.  Hamer,  38  Miss.  652  ;  Schulherr  r.  Bordeaux,  64  Miss.  59 ; 
Lammert  v.  Lidwell,  62  Mo.  188  ;  State  ex  rel.  Maggard  v.  Pond,  93 
Mo.  606;  State  v.  Noyes,  10  Foster,  279;  C.  W.  &  Z.  R.  R.  Co.  v.  Clin- 
ton County,  i  O.  S.  77  ;  Gordon  v.  The  State,  46  O.  S.  607  ;  Moers  v. 
City  of  Reading,  21  Penn.  188  ;  Locke's  Appeal,  72  Penn.  491  ;  John- 
son  v.  Martin,  75  Tex.  33  ;  14  Texas  Court  of  Appeals,  505  ;  State  v. 
O'Neill,  24  Wis.  149;  Smith  v.  City  of  Janesville,  26  Wis.  291  ;  Dowling 
v.  The  Lancashire  Insurance  Company,  92  Wis.  63  ;  In  re  Village  of 
North  Milwaukee,  93  Wis.  616;  Trustees  of  Paris  Township  v.  Cherry 
et  al.,  8  O.  S.  564;  Peck  v.  Weddell,  17  O.  S.  271  ;  State  ex  rel.  Wil- 
cox,  45  Mo.  458 ;  Manly  v.  City  of  Raleigh,  4  Jones  Eq.  370. 


IS  THE  LOCAL  REFERENDUM  CONSTITUTIONAL?  329 

latures  with  reference  to  municipal  and  quasi-municipal  cor- 
porations the  reasoning  is  very  direct.  The  legislature,  be- 
ing unable  to  exercise  its  authority  without  the  co-operation 
of  local  agents  which  are  designated  to  attend  to  affairs  of 
local  administration,  it  is  an  easy  step  to  change  the  agents. 
If  these  powers  are  already  entrusted  to  selectmen,  trustees, 
commissioners,  supervisors,  mayors  and  members  of  councils 
and  other  representative  officers  and  local  boards  it  is  not  far 
to  go  to  the  whole  body  of  electors.  In  New.  England  the 
voters  assembled  in  town  meeting  are  permitted  by  the  legis- 
lature to  make  determinations  in  regard  to  many  matters 
pertaining  to  local  government,  elsewhere  usually  left  to  the 
discretion  of  a  few  representatve  officers.  The  referendum 
provides  a  method,  where  the  town  meeting  does  not  exist, 
of  collecting  the  sentiments  of  the  people  and  of  introducing 
them  en  masse  as  a  tribunal  in  local  government.  This 
argument  deduced  from  the  legislature's  extensive  rights 
over  municipalities  is  based  also  upon  grounds  of  expediency, 
since  the  submission  of  such  laws  to  local  officers  and  bodies 
is  held  greatly  to  conduce  to  the  proper  administration  of 
local  affairs  which,  in  the  nature  of  the  case,  are  often  so 
special  in  character  as  to  make  suitable  action  on  the  part  of 
a  law-giver  stationed  at  some  distant  post  not  very  feasible. 
A  judge  or  a  local  board  is  authorized  to  determine  whether 
licenses  for  the  sale  of  liquor  shall  be  granted.  Why  then, 
it  is  asked,  may  not  all  the  electors  in  the  district  to  be  af- 
fected by  the  order  decide  this  question?  An  officer  or  sev- 
eral officers  are  authorized  to  decide  whether  a  certain  tax 
shall  be  laid,  whether  a  county  boundary  line  shall  be  changed 
or  a  county  seat  removed,  whether  one  town  shall  be  annexed 
to  another  for  purposes  of  government.  Why  may  not  such 
questions  be  referred  to  some  other  authority,  namely,  to  the 
voters  themselves? 

To  how  large  an  extent  considerations  of  expediency, 
rather  than  those  of  law,  have  had  to  do  with  this  develop- 
ment in  the  United  States,  will  appear  from  the  following 
opinions  in  which  this  theory  as  to  the  power  of  the  legis- 


33°  THE  REFERENDUM  IN  AMERICA 

lature  over  municipalities  as  an  explanation  and  defence  of 
the  referendum,  seems  to  have  been  fairly  stated.  As  early 
as  in  1844  the  highest  court  in  Maryland  in  Burgess  v.  Pue, 
2  Gill,  19,  a  case  arising  out  of  a  law  to  tax  the  people  in  aid 
of  free  schools  said :  "  We  think  there  was  no  validity  in  the 
constitutional  question  which  was  raised  by  the  appellee's 
counsel  in  the  course  of  his  argument,  relative  to  the  com- 
petency of  the  legislature  to  delegate  the  power  of  taxation 
to  the  taxable  inhabitants  for  the  purpose  of  raising  a  fund 
foi  the  diffusion  of  knowledge  and  the  support  of  primary 
schools.  The  object  was  a  laudable  one,  and  there  is  nothing 
in  the  constitution  prohibitory  of  the  delegation  of  the  power 
of  taxation  in  the  mode  adopted  to  effect  the  attainment  of 
it ;  we  may  say  that  grants  of  similar  powers  to  other  bodies 
for  political  purposes  have  been  coeval  with  the  constitu- 
tion itself,  and  that  no  serious  doubts  have  ever  been  enter- 
tained of  their  validity.  It  is  therefore  too  late  at  this  day 
to  raise  such  an  objection." 

The  Supreme  Court  of  Louisiana  in  1853,  Police  Jury  v. 
McDonogh,  8  La.  An.,  341,  in  an  opinion  induced  by  an  act 
authorizing  local  districts  upon  a  vote  of  the  people  to  sub- 
scribe to  the  stock  of  internal  improvement  companies,  said : 
"  The  right  of  the  legislature  to  delegate  the  power  of  taxa- 
tion for  local  purposes  to  municipal  authorities  is  established 
in  this  State,  and  in  our  sister  States,  by  an  uninterrupted 
train  of  legislative  precedents  and  judicial  decisions.  The 
necessity  and  propriety  of  such  delegation  are  obvious.  The 
supreme  jurisdiction  has  not  leisure  nor  information  to  take 
cognizance  of  and  manage  all  the  matters  which  concern  a 
particular  locality.  The  interests  of  a  particular  town  or 
county  are  best  understood  and  can  be  best  administered  by 
its  inhabitants,  or  persons  of  their  choice  selected  under  legis- 
lative authority.  Our  own  statute  books  and  those  of  our 
sister  States  are  rilled  with  acts  creating  these  political  cor- 
porations whose  powers  are  emanations  from  the  legislative 
will  and  subject  to  be  enlarged  or  curtailed  by  that  will  from 
time  to  time,  as  the  wisdom  of  the  legislature  may  dictate. 


IS  THE  LOCAL  REFERENDUM  CONSTITUTIONAL?  33 * 

.  .  .  If  the  legislature  could  constitutionally  confer  on  the 
police  jury  authority  to  pass  a  taxing  ordinance,  it  would 
seem  rather  a  safeguard  against  oppression  than  the  reverse 
to  qualify  the  power  of  requiring  it  to  be  exercised  with 
the  approbation  of  a  majority  of  those  who  are  to  bear  the 
burden.  Certainly  one  would  be  inclined,  with  much  show 
of  reason,  to  suppose  that  a  system  sanctioned  by  the  legis- 
lative will  and  tested  by  a  long  experience  in  one  of  the  oldest 
States  in  this  Union — a  State  which  was  amongst  the  fore- 
most in  the  struggle  for  constitutional  liberty — could  not 
well  be  inconsistent  with  the  principles  of  representative 
government.  If  we  look  to  Massachusetts  how  do  we  find 
municipal  matters  managed  there?  If  any  change  is  to  be 
introduced  into  the  existing  state  of  things,  or  if  they  wish  to 
undertake  any  new  enterprise,  the  selectmen  are  obliged  to 
refer  to  the  source  of  their  power.  If,  for  instance,  a  school 
is  to  be  established  the  selectmen  convoke  the  whole  body  of 
the  electors  on  a  certain  day  at  an  appointed  place;  they  ex- 
plain the  urgency  of  the  case ;  they  give  their  opinion  on  the 
means  of  satisfying  it,  on  the  probable  expense,  and  the  site 
which  seems  most  favorable.  The  meeting  is  consulted  on 
these  several  points ;  it  adopts  the  principle,  marks  out  the 
site,  votes  the  rate  and  confides  the  execution  of  the  resolu- 
tion to  the  selectmen.  The  system  practiced  in  Massachu- 
setts is  not  unknown  in  other  States.  ...  It  seems  to  us  a 
matter  of  surprise  that  the  caution  of  the  legislature  in  its 
grant  of  the  taxing  power  should  be  made  a  subject  of  re- 
proach." 

The  Court  of  Appeals  of  Kentucky  in  1874,  Anderson  v. 
Commonwealth,  13  Bush.,  485,  in  a  case  in  which  the  special 
subject  brought  forward  for  review  was  a  local  option  liquor 
law,  said :  "  We  agree  that  the  question  of  license  or  no 
license  is  one  properly  of  local  police  and  may  be  constitu- 
tionally left  to  the  decision  and  discretion  of  the  lawfully 
created  agencies  representing  and  acting  for  the  local  public 
to  be  immediately  affected  by  the  retail  liquor  traffic,  such,  as 
the  county  courts  and  the  municipal  authorities  of  towns 


332  THE  REFERENDUM  IN  AMERICA 

and  cities.  And  further  that  the  legislature  may  create  other 
agencies  to  determine  this  local  question,  and  that  it  is  no 
constitutional  objection  to  the  agencies  created  by  the  act 
under  consideration  that  they  are  composed  of  the  body  of 
the  qualified  voters  of  the  city,  town  or  civil  district  in  which 
the  necessary  steps  may  be  taken  to  test  the  sense  of  such 
voters  on  the  subject  of  such  retail  traffic." 

The  whole  topic  was  considered  in  a  very  satisfactory 
manner  from  an  historical  point  of  view  in  Maryland  in  1891, 
Bradshaw  v.  Lankford,  73  Md.,  428.  The  court's  opinion 
was  as  follows :  "  It  can  hardly  be  necessary  to  say  that  by 
the  Constitution  of  this  State  the  power  to  enact  laws  belongs 
to  the  General  Assembly,  composed  of  the  senate  and  the 
house  of  delegates ;  and  this  being  so  it  is  a  well  settled  prin- 
ciple of  constitutional  law  that  the  power  thus  delegated  can- 
not be  redelegated  to  the  people  themselves.  Our  govern- 
ment is  a  representative  government  and  to  the  members  of 
the  General  Assembly  the  people  have  confided  the  power 
to  pass  such  laws  as  they,  in  the  exercise  of  this  judgment, 
may  deem  best  for  the  public  interests ;  and  they  have  no 
power  to  substitute  the  judgment  of  others  in  matters  of 
legislation  for  the  judgment  of  those  to  whom  this  sovereign 
trust  has  been  committed.  But  fundamental  as  this  principle 
may  be  it  is  subject  to  certain  qualifications,  some  of  which 
are  well  recognized  both  in  this  country  and  in  England. 
No  one  questions  the  power  of  the  legislature  to  charter 
municipal  corporations  and  to  confer  upon  such  corporations 
the  power  to  pass  laws  and  ordinances  in  regard  to  matters 
pertaining  to  local  legislation.  And  it  seems  to  be  quite  well 
settled  in  this  country  at  least  that,  not  only  may  the  mu- 
nicipal authorities  themselves  pass  such  laws  and  ordinances, 
but  the  legislature  may  refer  laws  in  regard  to  local  affairs 
to  the  voters  of  the  municipality  for  their  acceptance  or  re- 
jection. Upon  the  same  principle  counties,  although  pos- 
sessing the  general  powers  of  municipal  corporations  under 
special  charters,  are  regarded  as  quasi  corporations  and  it 


IS  THE  LOCAL  REFERENDUM  CONSTITUTIONAL?  333 

seems  to  be  well  settled  that  questions  of  local  concern, 
whether,  for  instance,  a  county  seat  once  located  shall  be  re- 
moved elsewhere,  or  whether  the  county  shall  subscribe  to 
a  particular  improvement, — these  and  other  like  questions 
of  local  legislation  may  be  referred  to  the  voters  of  the 
county  for  decision.  Upon  the  same  principle,  too,  it  has 
been  held  in  this  State  that  laws  passed  under  the  pplice 
powers  of  the  State  regulating  or  forbidding  the  sale  of  in- 
toxicating drinks,  commonly  known  as  local  option  laws, 
may  be  submitted  to  the  voters  of  an  election  district  of  a 
county  and  the  operation  of  such  laws  made  to  depend  upon 
the  result  of  a  popular  vote  in  said  district."  25 

A  general  study  of  the  various  deliverances  of  the  courts 
touching  the  constitutionality  of  the  submission  of  subjects 
of  local  government  to  popular  vote  will  develop  the  fact 
that  the  contingency  theory,  and  the  theory  based  upon  the 
legislature's  power  in  reference  to  municipalities,  as  well  as 
the  related  consideration  as  to  the  expediency  of  a  central  and 
distant  body  sutmitting  questions  of  purely  local  concern  to 
the  people  who  are  to  be  directly  affected  by  them  in  order 
that  administration  may  be  more  smooth  and  effective,  bear- 
ing with  the  least  possible  harshness  upon  the  inhabitants, 
are  closely  interwoven.  The  judges  pass  almost  impercept- 
ibly from  one  to  the  other  and  whatever  their  own  individual 
views  may  be  as  to  the  law  in  the  case,  they  are  at  any  rate 
compelled  to  recognize  that  conditional  legislation  of  this 
kind  has  existed  in  all  parts  of  the  Republic  from  the  founda- 
tion of  the  government.  Whether  there  is  in  a  strict  judicial 
sense  justification  for  it  or  not,  it  is  here  and  it  must  be  reck- 
oned with  as  a  part  of  us.  A  great  weight  of  precedent  and, 
perhaps  other  important  considerations  which  are  not  em- 
pirical, can  be  appealed  to  in  its  defence.  The  town  meet- 

25  For  other  cases  in  which  this  line  of  reasoning  is  pursued,  cf.  God- 
din  v.  Crump,  8  Leigh,  120;  Slack  v.  Maysville  and  Lexington  R.  R. 
Co..  13  B.  Mon.  i  ;  State  v.  Wilcox,  42  Conn.  364;  Caldwell  v.  Barrett, 
73  Ga.  604;  City  of  Paterson  v.  Society  for  Establishing  Useful  Manu- 
factures, 4  Zab.  385. 


334 


THE  REFERENDUM  IN  AMERICA 


ing  and  the  referendum  are  factors  in  the  American  system 
of  local  government  which  will  remain  with  us  long  after 
the  jurist  has  ceased  to  seek  the  grounds  for  these  interesting 
political  institutions. 


CHAPTER  XIV 

THE  REFERENDUM  ON   CITY  CHARTERS 

ONE  of  the  most  serious  of  the  problems  which  confront 
us  in  the  field  of  government  in  the  United  States  is  met  with 
in  our  large  cities.  In  these  great  metropolitan  districts  of  so 
recent  a  development  there  have  grown  up  difficulties  with 
which  our  type  of  government  has  yet  seemed  unable  to  cope. 
The  large  populations  of  modern  cities  and  the  diverse  social 
interests  of  all  these  multitudes  of  people,  coming  into  con- 
flict as  they  must  to  a  much  greater  extent  than  in  rural  dis- 
tricts since  they  must  live  so  close  together  within  a  very 
limited  territorial  area,  have  developed  a  set  of  problems  that 
put  the  present  machinery  of  government  to  a  severe  test. 
It  is  not  too  much  to  say  that  our  experiments  in  the  main 
have  been  entirely  unsuccessful  up  to  this  time,  though  there 
is  hope  that  within  a  not  very  long  period  the  whole  system 
may  be  reorganized  in  such  a  way  as  to  insure  very  much  bet- 
ter results.  In  what  manner  this  end  is  to  be  attained  it  is 
difficult  to  foresee,  but  all  observant  persons  are  convinced 
that  our  system  to-day  is  notably  deficient  in  certain  im- 
portant particulars  vital  to  the  honest  and  proper  manage- 
ment of  city  affairs. 

The  whole  political  machinery  is  not  infrequently  seized 
hold  of  by  corrupt  elements  in  the  city  who  conduct  the  elec- 
tions, occupy  the  offices  and  administer  public  affairs  to  serve 
their  own  private  ends.  They  are  restrained  very  often,  it  is 
true,  from  adopting  too  bold  a  course,  and,  at  times,  even  are 
constrained  to  present  for  leading  offices  the  names  of  can- 
didates whom  citizens  holding  to  higher  standards  may  con- 
scientiously support.  When  pressed  hard  by  an  aroused  pub- 
lic sentiment  the  office-holding  cliques  will  sometimes  make 

335 


336  THE  REFERENDUM  IN  AMERICA 

important  concessions  to  save  themselves  from  a  defeat  which 
might  sweep  them  from  position  entirely.  Occasionally, 
indeed,  by  dint  of  strenuous  endeavor  good  citizens  who 
encounter  peculiar  opposition  and  obloquy  in  carrying  on 
their  patriotic  work  are  able  to  organize  their  fellow  voters 
against  the  more  ignorant  and  the  less  honest  factions.  But 
these  get  their  living  from  the  offices  they  fill  and  it  is  one 
of  the  most  difficult  matters,  except  at  unusual  times,  to  dis- 
lodge them.  The  good  citizens  from  among  whom  leaders 
of  talent  and  force  have  risen  up  must  return  to  their  own 
pursuits,  and  so  soon  as  the  pressure  of  an  outraged  public 
sentiment  is  removed  the  same  elements  make  their  appear- 
ance again  and  resume  their  places  as  before  in  arrogant 
defiance  of  the  forces  which  stand  for  better  government. 
The  cost  and  sacrifice  of  such  a  campaign  by  men  who  must 
neglect  their  private  affairs  and  run  the  gauntlet  of  un- 
pleasant criticism  by  interested  partisans  and  a  hireling  press 
is  so  great  and  the  victory  so  temporary,  it  is  not  to  be  won- 
dered at  that  the  task  is  seldom  undertaken.  It  has 
seemed  to  be  better  and  easier  for  us  to  bear  with  a  very 
great  deal  of  inefficient,  if  not  positively  bad  and  mischievous, 
government  in  cities  rather  than  keep  ourselves  on  guard  con- 
stantly against  these  strong  elements  that  are  always  at  hand 
to  break  through  the  gates  of  virtue. 

Much  of  the  merit  or  demerit  of  a  city  government  has 
been  held  to  reside  in  the  city  charter,  the  grant  of  powers 
received  from  the  State  legislature  of  which  each  city  in  this 
country  except  Washington  is  the  creation,  the  latter  city 
standing  under  Federal  supervision  by  reason  of  its  being 
the  national  capital.  In  the  main,  in  pursuance  of  some  un- 
written law,  each  American  city  is  organized  after  the  same 
pattern  as  the  Federal  and  State  governments,  i.  e.,  like  the 
England  of  Montesquieu's  time.  It  has  been  adjudged 
needful,  for  some  reason,  to  give  a  city  government  three 
separate  departments — executive,  legislative  and  judicial. 
American  publicists  have  seemed  to  recognize  no  other  type 
of  government  and  to  this  fact  it  is,  at  least  in  some  degree, 


ON  CITY  CHARTERS  337 

due  that  our  failures  in  this  field  have  been  so  notably  dis- 
creditable. This  peculiar  tripartite  division  of  powers  in 
cities  has  been  remarked  upon  by  many  excellent  students  of 
our  institutions  *  and  at  last  there  seems  to  be  a  distinct 
tendency  at  work  to  correct  some  of  these  inherited  miscon- 
ceptions as  to  the  form  that  should  properly  be  given  to  a 
great  municipal  corporation.  The  mayor's  hands  are  being 
strengthened  constantly  and  there  is  a  movement  afoot  to 
centralize  power  in  a  few  officers  in  a  manner  that  some 
earlier  exponents  of  our  democratic  system  might  have  re- 
garded as  quite  inconsistent  with  the  rules  of  popular  self- 
government.  The  movement  toward  a  competent  civil  serv- 
ice under  the  direction  of  some  central  authority  is,  how- 
ever, steadily  going  forward  and  there  will  not  probably  be 
any  backward  step  when  it  comes  to  be  fully  understood  how 
great  is  the  need  in  cities  of  capable  administrators  who  are 
held  directly  responsible  to  a  few  authorities  possessing  real 
power  over  them.  It  is  an  instance  in  which  the  "  checks 
and  balances  "  of  government  are  grotesquely  out  of  place, 
if  past  experience  in  this  country  is  to  serve  us  as  a  guide. 
In  this  view,  too,  there  is  much  positive  corroboration  com- 
ing from  Europe  where  greater  success  in  municipal  govern- 
ment is  being  achieved  by  methods  that  we  have  been  too  slow 
to  adopt. 

Nevertheless  it  is  possible  to  commit  serious  error  if  we 
rely  too  fully  on  forms  and  insist  upon  a  certain  kind  of 
charter  as  the  only  means  to  good  government.  A  great  deal 
else  must  be  considered,  though  to  avoid  impracticable  and 
unworkable  systems  is,  of  course,  an  initial  obligation.  Pan- 
aceas in  government  have  not  yet  been  discovered,  and  al- 
though for  this  reason  too  much  stress  has  been  laid  on 
what  is  called  the  "  Home  Rule  "  principle  as  a  corrective 
for  present  evils,  it  is  in  any  event  a  very  interesting  devel- 
opment and  one  that  is  to  claim  our  special  attention  in  this 

1  Cf.  Bryce,  op.  cit.,  Vol.  I,  pp.  623-24 ;  Lowell,  Governments  and  Par- 
ties in  Continental  Europe,  Vol.  II,  p.  300. 


338  THE  REFERENDUM  IN  AMERICA 

chapter  in  so  far  as  it  has  come  to  involve  a  direct  vote  of 
the  people  on  their  city  charters. 

It  is  alleged  that  the  population  of  a  city  is  often  so  great 
and  its  requirements  so  specific  that  it  might  better  be  a 
"  free  city ",  holding  relations  with  the  Federal  govern- 
ment directly  instead  of  only  mediately  and  through  the 
State  of  which  it  is  now  a  part.  The  interests  of  the  rural 
and  urban  portions  of  the  State  are  so  different  that  a  legis- 
lature common  to  both  can  minister  well  to  the  needs  of 
neither  section  of  the  population.  Although  the  importance 
of  local  self-government  has  been  recognized  from  the  be- 
ginning in  the  United  States,  the  power  of  the  State  legis- 
lature over  a  municipality  is  so  absolute  that  gross  abuses 
may  easily  creep  in.  The  legislature  grants  not  only  the 
general  charter  of  incorporation  from  which  the  city  derives 
its  self-governing  powers,  but  it  may  pass  bills  from  time 
to  time  amending  that  charter  and  may  withdraw  it  altogether 
at  its  pleasure,  supplanting  it  with  another  except  as  restraint 
may  be  found  in  the  State  constitution.  The  interferences 
of  the  legislatures  in  city  government  have  been  so  frequent 
and  disturbing  in  recent  years  that  a  general  effort  to  check 
the  tendency  has  been  made,  either  by  constitutional  provi- 
sion or  by  force  of  precedent  upheld  by  public  sentiment, 
with  very  interesting  results  in  more  than  one  State  of  the 
Union.  There  has  sprung  up  a  desire  for  Home  Rule,  the 
city  being  allowed  to  govern  itself  instead  of  being  gov- 
erned to  so  large  an  extent  from  the  State  capital  by  bills 
and  charters.  Home  Rule,  indeed,  has  become  a  very 
popular  "  cry  "  and  it  is  plain,  of  course,  that  a  serious  evil 
is  at  hand  when  the  legislatures  make  improper  use  of  their 
power,  as  they  can  be  convicted  of  doing  in  nearly  all  the 
States  in  which  large  cities  exist. 

To  go  so  far,  however,  as  to  recommend  that  the  cities 
should  be  entirely  emancipated  from  the  supervision  of  the 
State  is  a  quite  untenable  position,  though  there  is  a  marked 
tendency  for  the  cities  to  seek  protection  of  the  constitu- 
tional conventions  which  do  not  meet  so  often,  rather  than 


ON  CITY  CHARTERS  339 

place  themselves  so  fully  as  formerly  under  the  direction 
of  the  legislatures.  To  find  some  middle  ground  between 
complete  independence  and  absolute  dependence  is  a  prob- 
lem that  in  many  States  we  are  now  trying  to  solve.  It  must 
be  admitted  that  we  are  still  passing  through  the  experimental 
stages  of  the  development  and  have  not  yet  come  to  any 
result  which  may  be  regarded  as  generally  satisfactory.  And 
most  of  all  it  is  important  to  keep  the  fact  in  mind  that  while 
this  reform  may  have  in  view  a  great  evil,  and  may  really 
close  one  avenue  to  mischievous  municipal  government, 
others  are  likely  still  to  remain  open.  If  there  is  Home  Rule 
there  must  be  methods  at  home  to  secure  proper  and  ef- 
ficient public  administration,  else  home  rule  will  not  be  better 
than  rule  at  a  greater  distance.  If  the  responsibility  is  to  be 
shifted,  and  what  has  formerly  been  done  by  the  legislature 
even  though  it  was  poorly  done,  is  now  to  be  prohibited  to  it 
there  must  be  some  capable  body  to  stand  in  its  stead.  Here 
it  seems  we  are  undertaking  to  introduce  the  whole  electorate, 
the  citizens  at  large,  whose  power  is  exercised  through  the 
referendum.  The  people  are  brought  into  our  system,  to 
supplement  the  legislature  either  ( i )  by  accepting  or  vetoing 
a  charter  or  local  government  act  which  the  legislature  may 
submit  to  them;  or  (2)  by  approving  or  rejecting  the  char- 
ter as  it  is  received  from  some  local  body  designated  to  draft 
it,  in  those  States  in  which  an  attempt  has  been  made  by 
constitutional  means  wholly  to  eliminate  the  influence  of 
the  legislature. 

It  is  a  very  usual  practice  for  some  one  high  legal  au- 
thority or  a  committee  of  leading  citizens  to  whom  the  task 
may  be  assigned  by  common  assent  of  the  people  inhabiting 
the  city,  to  prepare  a  charter  which  is  then  introduced  into 
the  State  legislature  as  a  bill  and  is  regularly  passed  as  an 
incorporation  act  without  change,  or  at  any  rate,  with  very 
slight  amendment  and  modification.  It  is  but  another  step 
to  submit  the  charter  to  a  vote  of  the  people  of  the  city  who 
are  in  future  to  be  governed  by  it.  Odd1)^  enough  this  ref- 
erendum is  more  usual  in  small  than  in  large  cities.  The  vote 


340  THE  REFERENDUM  IN  AMERICA 

upon  abandoning  village  or  town  organization  in  favor  of 
incorporation  as  a  city  under  a  general  law  is  in  effect  such 
a  referendum.  It  is  known  in  this  case  that  if  the  poll  shall 
be  favorable  to  the  proposition  the  terms  of  a  specific  law 
will  apply  to  the  city  ipso  facto  without  more  ado.  Sim- 
ilarly when  the  people  of  a  city  of  a  certain  class  vote  to 
advance  its  grade  to  another  class,  as  when  a  third-class  city 
becomes  a  second-class  city  in  States  in  which  cities  are  all 
brought  under  general  laws,  it  is  in  effect  a  referendum  upon 
a  charter. 

We  may  pass  these  cases,  however,  which  have  been 
treated  fully  enough  in  an  earlier  chapter,  and  consider  those 
instances  specifically  in  which  the  people  of  a  city  vote 
directly  to  accept  or  reject  a  particular  charter  which  has 
been  submitted  to  them  by  the  State  legislature.  For  ex- 
ample, in  Massachusetts  various  special  acts  for  the  in- 
corporation of  towns  and  cities,  or  acts  revising  charters 
previously  granted,  are  referred  to  popular  vote.  In  1896 
an  act  to  amend  the  charter  of  the  city  of  Everett  contained 
the  following  provision :  "  This  act  shall  be  submitted  to  the 
voters  of  the  city  of  Everett  who  shall  vote  '  yes '  and  '  no ' 
upon  the  question  of  the  acceptance  of  the  several  sections  at 
the  annual  State  election  in  the  present  year  and  only  such 
sections  shall  take  effect  as  shall,  at  such  election,  be  accepted 
by  the  affirmative  votes  of  a  majority  of  the  voters  voting  on 
the  several  sections  at  said  election."  2  Incorporation  acts 
for  cities  in  Massachusetts  in  recent  years  have  frequently 
been  submitted  to  popular  vote.3 

In  Maryland  also  it  is  not  uncommon  for  the  legislature  to 
submit  incorporation  acts  or  amendments  to  the  charters 
of  towns  and  cities,*  and  in  Tennessee  the  same  practice  is 
followed  in  certain  cases  which  have  been  brought  to  my 
notice.  The  charter  of  the  city  of  Harriman  which  was 

2  Acts  of  Massachusetts,  1896,  p.  301. 

8Cf.  Acts  of  Massachusetts,  1896,  pp.  205,  312,  364,  394,  419;  Acts 
of    1897,   pp.    124,    191,   265. 
4  Laws  of  1890,  p.  118;  Laws  of  1894,  p.  887;  Laws  of  1896,  p.  608. 


ON  CITY  CHARTERS  34* 

passed  by  the  legislature  in  1891 5  was  not  to  become  ef- 
fective until  it  had  been  ratified  by  popular  vote.  The  law 
said :  "  This  act  shall  go  into  effect  and  be  enforced  from 
and  after  its  passage,  the  public  welfare  requiring  it,  to  the 
extent  that  it  is  hereby  made  the  duty  of  the  sheriff  of  Rome 
County,  in  person  or  by  one  of  his  deputies,  to  hold  on  the 
nineteenth  day  of  May,  1891,  at  some  public  place  within 
the  boundaries  defined  in  art.  i,  sec.  2,  of  this  act  ....  an 
election  at  which  all  persons  qualified  to  vote  at  the  first 
election  provided  for  in  art.  iv,  sec.  4,  shall  be  entitled  to 
vote,  and  the  question  shall  be  voted  upon  whether  this 
charter  shall  be  accepted  or  not,  and  those  of  such  voters  who 
favor  the  acceptance  of  this  charter  shall  deposit  their  bal- 
lots '  For  Charter '  and  those  who  oppose  the  acceptance  of 
this  charter  shall  deposit  their  ballots  '  Against  Charter ', 
and  if  a  majority  of  such  voters  shall  vote  in  favor  of  the 
acceptance  of  this  charter,  then  this  act  from  and  after  the 
canvassing  of  said  returns,  etc.,  shall  go  into  effect  and  be 
in  force  in  every  part  thereof." 

In  Oregon,  likewise,  charters  of  municipal  corporations 
are  sometimes  submitted  to  the  people.  Thus  an  act  to  in- 
corporate the  city  of  Roseburg  says :  "  This  act  shall  be  sub- 
mitted to  the  legal  voters  of  the  city  of  Roseburg  at  a 
special  election  ....  at  which  said  election  the  ballots  shall 
be  written  or  printed  as  follows :  '  New  Charter — Yes  ', 
'  New  Charter — No '.  If  a  majority  of  the  ballots  cast  shall 
read  '  New  Charter — Yes  ',  then  this  act  shall  immediately 
go  into  effect."6 

Furthermore  in  Vermont  acts  of  incorporation  are  very 
frequently  referred  to  the  citizens  residing  within  the  dis- 
trict to  be  incorporated,7  and  in  Rhode  Island  in  a  law  to 
establish  "  the  city  of  Johnston  "  it  was  provided  that  "  this 

6  Acts  of  1891,  p.  93. 

8  Laws  of  1893,  P-  458;  cf.  ibid.,  pp.  119,  228,  4.52,  504. 

7Cf.  Laws  of  1884,  pp.  191,  203,  212;  Laws  of  1886,  pp.  172,  184, 
189;  Laws  of  1888,  p.  260;  Laws  of  1890,  pp.  79,  85,  92,  109,  121  ;  Laws 
of  1892,  pp.  156,  174,  213;  Laws  of  1896,  pp.  212,  225,  239,  247. 


34*  THE  REFERENDUM  IN  AMERICA 

act  shall  be  submitted  for  acceptance  to  the  qualified  voters 
of  the  town  of  Johnston  ".8  An  act  to  amend  and  reenact 
the  charter  of  the  city  of  Sistersville,  in  West  Virginia, 
which  was  passed  in  1895,  was  not  to  take  effect  "  until  it 
be  ratified  by  a  majority  of  the  legal  voters  within  the  cor- 
porate limits  of  said  town  of  Sistersville  ".9 

In  all  these  States  yielding  the  cases  which  have  just  been 
cited,  however,  a  poll  of  the  people  is  the  exception  rather 
than  the  rule.  It  is  in  Louisiana  that  a  general  system  has 
been  evolved  and  introduced  into  the  legislative  procedure 
in  respect  of  charters, — in  Louisiana  that  the  legislature  has 
voluntarily  surrendered  to  the  people  of  towns  and  cities, 
New  Orleans  alone  excepted,  the  right  to  determine  under 
what  kind  of  a  local  government  act  they  shall  be  organized. 
The  steps  which  lead  up  to  the  referendum  in  this  State 
are  as  follows:  (i)  The  preparation  of  a  charter  by  means 
not  known  to  the  law,  presumably  by  a  private  organization 
of  men,  or  a  committee  of  citizens.  (2)  The  presentation 
of  this  charter  to  the  mayor  and  council  of  the  town  or  city 
accompanied  by  a  petition  "  signed  by  a  majority  of  the 
property  owners  residing  within  the  corporate  limits  "  ask- 
ing that  the  proposed  new  charter  shall  be  submitted  "  to  the 
duly  qualified  electors  "  to  be  adopted  or  rejected  by  them. 
(3)  An  election  to  be  held  within  ninety  days  from  the  date 
of  the  filing  of  the  petition,  preceded  by  notices  published 
in  the  newspapers.  If  a  majority  of  the  votes  cast  at  this 
election  are  in  favor  of  the  new  charter  the  law  provides  that 
"  it  shall  become  the  charter  of  said  city  or  town  and  be  duly 
promulgated  as  such  by  the  mayor  ".10 

In  like  manner  when  the  charters  of  towns  and  cities 
(barring  New  Orleans)  are  to  be  altered  or  changed  it  is 
contemplated  that  the  amendments  shall  be  submitted  to 
popular  vote.  Whenever  a  petition  is  received  by  the  officers 
of  the  city  "  signed  by  one-third  or  more  of  the  property 

8  Laws  of  Rhode  Island,  1897,  chap.  516. 

8  Acts  of  West  Virginia,  1895,  p.  139. 

10  Wolff's  Revised  Laws  of  Louisiana,  1896,  p.  567;  cf.  ibid.,  p.  566. 


ON  CITY  CHARTERS  343 

taxpayers  "  asking  for  a  change  in  or  an  amendment  of  the 
charter  the  proposition  must  be  referred  to  the  people.  If 
more  than  one  amendment  be  submitted  at  the  same  time 
the  means  must  be  at  hand  for  the  voters  to  express  their 
views  in  regard  to  each  proposal  separately.  "  If  a  majority 
of  the  qualified  electors  at  such  election  shall  approve  and 
ratify  such  amendment  or  amendments  ",  the  law  provides 
that,  "  the  same  shall  be  appropriately  numbered  and  become 
a  part  of  the  charter  and  be  proclaimed  as  such  by  the 
mayor  or  other  executive  head  "." 

It  is  of  interest  to  note  that  the  legislature  here  reserves 
to  itself  no  veto  power  over  these  charters  which  towns 
and  cities  may  adopt  on  their  own  initiation  for  their  own 
government.  It  is  assumed  of  course  that  the  charters  will 
be  in  harmony  with  general  State  laws;  that  a  municipality 
will  not  actually  make  itself  an  imperium  in  imperio,  acting 
over  the  head  of  the  regularly  established  State  govern- 
ment. Other  agencies — such  as  the  courts — failing  to  apply 
the  necessary  restraints  a  way  would  still  be  open  to  the 
legislature  and  one  very  near  its  hand.  It  could  at  any  time 
repeal  the  law  and  enact  such  other  legislation  respecting 
towns  and  cities  as  the  situation  might  seem  to  demand.  In 
no  conceivable  case  could  a  town  or  city  under  this  system 
attain  that  position  of  independence  which  would  release 
it  from  the  supreme  authority  and  sovereignty  of  the  State 
legislature  in  the  sense  that  this  singular  result  has  been 
attained  in  Missouri,  California,  Washington  and  Minne- 
sota where  the  constitutions  in  specific  terms  take  the  char- 
ter-making power  entirely  out  of  the  hands  of  the  legis- 
lature and  place  it  with  local  agents.  To  charters  which 
are  framed  by  local  bodies  and  submitted  to  the  people  under 
authority  derived  from  the  State  constitutions  the  discussion 
will  immediately  pass. 

There  was  injected  into  our  legal  system  when  the  con- 
vention met  to  frame  a  new  constitution  for  Missouri  in 
1875  an  entirely  new  principle,  which  though  it  has  already 

u  Wolff's  Rev.  Laws  of  La.,  p.  565. 


344  THE  REFERENDUM  IN  AMERICA 

been  accepted  with  greater  or  less  modification  in  four 
States,  can  not  yet  be  said  to  have  got  itself  ftrmly  estab- 
lished in  the  American  practice.  This  is  because  of  the 
conflict  between  authorities  which  is  certain  to  be  engen- 
dered by  a  change  so  radical  and  complete.  This  reform  was 
nothing  less  than  putting  the  city  in  a  position  in  which  it 
holds  direct  relations  with  the  constitutional  convention  in- 
stead of  with  the  legislature.  The  city  adopts  its  own 
charter  according  to  certain  definite  rules  prescribed  in  the 
constitution.  The  legislature's  authority  in  a  sense  ceases, 
or  is  at  any  rate  suspended,  and  although  many  questions 
calling  for  judicial  interpretation,  which  tend  to  confuse  the 
whole  subject,  have  arisen  from  time  to  time,  municipalities 
in  some  States  have  actually  won  a  high  degree  of  autonomy 
by  this  method. 

The  provision  which  found  its  way  into  the  Missouri 
Constitution  of  1875  was  especially  designed  to  benefit  St. 
Louis.  At  that  time  the  government  of  the  city  was  viewed 
with  dissatisfaction  by  very  many  people.  Not  only  was  it 
desired  to  eliminate  the  influence  of  the  State  legislature, 
in  so  far  as  it  might  be  expedient  to  do  so,  but  it  was  hoped 
that  a  plan  could  be  devised  to  separate  the  county  of  St. 
Louis  from  the  city  of  St.  Louis,  the  two  governments  being 
at  that  time  co-extensive.  The  proposition  finally  took  this 
form — that  the  people  of  St.  Louis  should  elect  thirteen 
citizens  to  serve  as  a  "  Board  of  Freeholders  ".  Not  only 
should  this  board  draft  and  propose  a  city  charter,  but  it 
was  to  be  its  duty  also  to  prepare  a  "  Scheme  "  for  the  sepa- 
ration of  the  city  and  county  governments,  the  adjustment 
of  their  relations  and  so  forth.  To  ratify  the  "  Scheme  " 
and  charter  the  assent  of  a  majority  of  all  those  electors 
voting  on  the  two  subjects  at  a  special  election  called  for 
this  purpose  was  necessary,  and  this  vote  both  propositions 
received  on  August  22,  1876,  when  the  referendum  was 
held.12  It  was  further  provided  in  the  Constitution  that 

12  Constitution  of  Missouri,  art.  ix,  sees.  20-25  :  State  ex  rel.  v.  Sut- 
ton,  3  Mo.  App.  388  :  State  ex  rel.  v.  Finn,  4  Mo.  App.  347. 


ON  CITY  CHARTERS  345 

amendments  to  the  charter,  if  they  were  not  presented  more 
frequently  than  once  in  two  years,  might  be  proposed  by 
"  the  law-making  authorities  of  the  city  ".  They  would  be- 
come a  part  of  the  charter  if  they  were  approved  by  three- 
fifths  of  those  citizens  voting  on  the  subject  at  a  general  or 
special  election.13 

Lest  the  city  might  consider  itself  too  nearly  free  under 
this  system,  framing  and  adopting  its  own  charter  and 
amending  the  instrument  as  occasion  might  require,  pro- 
cesses which  hitherto  had  been  solely  within  the  province 
of  the  legislature,  the  convention  made  an  important  declara- 
tion. It  announced  in  specific  language  that  "  notwithstand- 
ing the  provisions  of  this  article,  the  General  Assembly  shall 
have  the  same  power  over  the  city  and  county  of  St.  Louis 
that  it  has  over  other  cities  and  counties  of  this  State  ",14 
and  also  that  the  "  charter  and  amendments  shall  always  be 
in  harmony  with  and  subject  to  the  Constitution  and  laws 
of  Missouri ". 

Furthermore,  a  section  of  a  general  character  was  inserted 
in  the  Constitution  of  Missouri  of  1875,  extending  the 
privilege  of  framing  and  adopting  a  freeholder's  charter 
to  any  city  in  the  State  having  a  population  of  more  than 
100,000,  which  rank  Kansas  City  afterward  attained.  In 
this  connection  the  convention  declared  again  that  the  char- 
ter should  "  always  be  in  harmony  with  and  subject  to  the 
Constitution  and  laws  of  the  State  ",15 

There  are  ideas  here  which  are  not  in  agreement  in  spite 
of  an  appeal  for  harmony.  The  machinery  is  provided  by 
which  a  city  may  make  itself  independent  of  the  legislature, 
yet  it  is  declared  expressly  that  the  legislature  shall  still 
exercise  its  authority  as  before,  i.  e.,  shall  pass  laws  for  the 
municipality.  In  Missouri's  experience  with  the  freeholders' 
charter,  which  in  the  case  of  St.  Louis  dates  from  1876, 
and  with  reference  to  Kansas  City  from  1889,  a  considerable 
body  of  opinion  on  this  point  has  been  handed  down  by  the 

18  Constitution  of   Missouri,   art.  ix,    sec.   22.      14  Ibid.,  art.  ix,  sec.  25. 
"Ibid.,  art.  ix,  sec.  16;  cf.  Acts  of  Missouri  of  1887,  p.  42. 


346  THE  REFERENDUM  IN  AMERICA 

courts.  Although  many  questions  touching  the  conflict  of 
authority  are  still  to  be  decided,  a  number  of  issues  have 
been  disposed  of.  The  legislature  has  gradually  succeeded  in 
regaining  nearly  all  its  former  power  over  these  two  cities. 
The  privilege,  which  it  was  thought  would  prove  so  valuable, 
has  been  reduced  to  a  rather  empty  form,  as  is  fully  evi- 
denced by  the  large  number  of  State  laws  for  the  govern- 
ment of  city  affairs  that  now  stand  side  by  side  with,  and 
are  superior  in  authority  to  the  city-made  charters  and 
ordinances.  The  Supreme  Court  of  Missouri  in  1889  said : 
"  The  legislative  power  of  the  State  is  vested  in  a  senate  and 
a  house  of  representatives,  and,  when  it  is  declared  that 
any  city  of  the  required  population  may  frame  and  adopt 
a  charter  for  its  own  government,  the  right  thus  granted  and 
the  charter  adopted  is  subject  to  legislative  control.  The 
proposition  that  when  any  such  city  has  adopted  a  charter 
it  is  out  of  and  beyond  all  legislative  influence  cannot  be 
sustained  ".16 

The  Supreme  Court  earlier  in  1884  speaking  in  the  same 
sense  said :  "  It  is  argued  that  inasmuch  as  these  sections 
authorized  the  voters  of  the  city  of  St.  Louis  to  frame  and 
adopt  a  charter  for  the  government  of  the  city  which,  when 
adopted  in  the  manner  therein  provided,  should  take  the  place 
of  and  supersede  the  charter  theretofore  granted  by  the  legis- 
lature and  all  amendments  thereto,  as  to  all  matters  of  local 
self-government,  an  imperium  in  imperio  was  created  and 
as  to  such  matters  the  city  was  emancipated  from  State  and 
legislative  control It  is  true  that  constitutional  au- 
thority was  given  to  the  people  of  the  city  to  frame  and 
adopt  a  charter  which  should  supersede  the  charter  and  all 
amendments  to  it  in  existence  at  the  time  of  its  adoption, 
but  the  idea  that  it  was  thereby  intended  to  create  a  sover- 
eignty and  deny  to  the  State  the  right  of  control  is,  we 
think,  completely  overthrown  by  the  limitations  contained 
in  the  Constitution  itself  ".17 

10  State  ex  rel.  Kansas  City  v.  Field,  99  Mo.  353. 
17  Ewing  v.   Hoblitzelle,   85   Mo.   64, 


ON  CITY  CHARTERS  347 

Although  there  are  some  opinions  which  seem  to  indicate 
a  deviation  from  this  principle,  the  rule  in  Missouri  is  fairly 
set  forth  in  the  declaration  given  above,  and  "  general 
laws  "  of  very  many  sorts  in  reference  to  many  different 
subjects  are  passed  by  the  legislature  which  in  intent  and  in 
effect  profoundly  influence  municipal  government  in  St. 
Louis  and  Kansas  City.18 

The  second  State  to  adopt  a  constitutional  provision  per- 
mitting cities  to  frame  their  own  charters  was  California.  The 
convention  which  met  in  1879  to  prepare  a  new  consti- 
tution for  that  State  determined  to  extend  to  San  Francisco 
the  same  privileges  which  were  already  enjoyed  by  St.  Louis. 
The  proposition  led  to  much  discussion  in  the  convention 
and,  although  it  had  been  approved  by  the  "  Committee  on 
City,  County  and  Township  Organization  "  to  which  such 
matters  were  regularly  referred,  it  met  with  considerable 
opposition  from  those  who  pretended  to  fear  that  San  Fran- 
cisco would  thus  be  enabled  to  cut  loose  from  the  rest  of  the 
State.  "  This  is  the  boldest  kind  of  an  attempt  at  seces- 
sion," one  delegate  said  in  the  convention,  and  another  pro- 
posed an  amendment  to  the  article  to  the  effect  that  the 
city  should  receive  from  the  State  "  all  the  privileges  and 
consideration  accorded  to  the  most  favored  nations  ",  and 
that  the  legislature  should  provide  "  a  duly  accredited  min- 
ister as  representative  of  the  State  in  the  said  city  ",19  So 
much  feeling  hostile  to  the  scheme  was  developed  that  an 
amendment  had  to  be  accepted  by  those  members  of  the 
convention  in  charge  of  the  measure  and  it  was  arranged 
that  the  charter,  after  being  approved  by  the  people  of  the 
city,  should  be  submitted  to  the  legislature — an  important 
modification  of  the  plan — which,  however,  must  accept  or 
reject  the  instrument  "  as  a  whole  without  power  of  altera- 
tion or  amendment ". 

18  For  additional  cases  throwing  light  on  this  point  in  Missouri,  see 
Kansas  City  ex  rel  v.  Scarritt,   127  Mo.  642;   State  ex  rel.  Ziegenhein 
•v.   Railroad,    117   Mo.    i;    State  v.   Bennett,    102   Mo.   356;   Westport  v. 
Kansas  City,   103  Mo.   141. 

19  Oberholtzer,  op  cit.,  p.  93. 


348  THE  REFERENDUM  IN  AMERICA 

This  section  of  the  Constitution  as  it  was  adopted  by  the 
convention,  the  people  of  the  State  ratifying  it  at  the  polls, 
was  to  apply  to  "  any  city  containing  a  population  of  more 
than  100,000  ",  therefore  to  San  Francisco  only.  The  city 
might  elect  a  board  of  fifteen  freeholders  (thirteen  in  Mis- 
souri) who  should  frame  a  charter  to  be  submitted  after- 
ward to  popular  vote.  If  it  were  approved  by  a  majority  of 
the  electors  voting  on  the  question  of  its  acceptance  or  re- 
jection, it  must  be  sent  to  the  State  legislature  which  must 
approve  or  reject  it  as  a  whole  "  by  a  majority  vote  of  the 
members  elected  to  each  house  ".  If  it  were  ratified  and 
became  the  charter  of  the  city  it  could  be  amended  "  at  in- 
tervals of  not  less  than  two  years  "  on  the  initiation  of  the 
city's  legislative  body,  should  the  proposed  changes  be  ap- 
proved by  a  three-fifths  vote  of  the  people  and  later  by  the 
State  legislature  as  in  the  case  of  the  original  charter.20 

Although  San  Francisco  had  failed  to  avail  herself  of  this 
privilege  in  respect  of  her  charter,  the  legislature  proposed 
a  constitutional  amendment  to  the  people  of  the  State  in 
1886  reducing  the  limit  of  population  from  100,000  to 
10,000.  This  amendment  was  adopted  at  a  special  election 
held  on  April  27,  1887,  and  opened  the  way  to  important 
changes  in  the  fundamental  law  of  a  number  of  the  less 
populous  cities  of  California.  At  an  election  in  1890  the 
privilege  was  still  further  extended  to  include  any  city  in 
the  State  containing  "  more  than  3,500  inhabitants  ".  The 
freeholders'  charter  was  thus  brought  within  the  reach  of 
every  municipality  in  California,  except  the  villages  and  the 
smaller  corporations,  for  whose  government  less  anxiety  is 
felt  by  those  who  interest  themselves  in  city  problems  in  the 
United  States. 

The  first  city  in  California  to  adopt  a  freeholders'  char- 
ter was  Los  Angeles.  The  city's  initial  attempt  to  take 
advantage  of  this  privilege,  however,  was  unsuccessful  in 
that  the  charter  when  it  was  submitted  to  the  people  was  re- 
jected and  another  Board  of  Freeholders  had  to  be  elected. 

20  Art.  xi,  sec.  8,  as  it  stood  before  it  was  amended. 


ON  CITY  CHARTERS  349 

The  second  board  drafted  a  charter  upon  which  a  referen- 
dum was  taken  on  October  20,  i888.21  The  State  legislature 
ratified  it  on  January  31,  1.889,  and  it  at  once  became  the 
charter  of  the  city,  superseding  acts  earlier  passed  by  the 
State  legislature.  On  November  6,  1888,  the  people  of  Oak- 
land, Cal.,  approved  a  freeholders'  charter  which  was  sub- 
mitted to  them.  Stockton  followed  with  a  charter  which 
was  ratified  by  the  people  of  that  city  on  November  20,  1888, 
while  San  Diego  in  December,  1888,  elected  freeholders 
who  prepared  a  charter  which  was  accepted  by  the  people 
at  a  referendum  held  on  March  2,  1889.  Sacramento,  the 
capital  city  of  the  State,  adopted  a  freeholders'  charter  at 
an  election  in  May,  i892.22  Grass  Valley  was  the  first  city 
in  the  State  having  less  than  10,000  inhabitants  to  undertake 
self-government.  This  was  in  the  year  1893,  and  it  was 
closely  followed  by  Napa,  Eureka  and  two  larger  cities, 
Berkeley  and  San  Jose.  In  1899  three  charters  were  pre- 
sented for  and  received  the  approval  of  the  legislature,  these 
being  for  San  Francisco,23  a  city  which  had  voted  on  this 
question  on  repeated  occasions,  Vallejo 24  and  Santa 
Barbara.25 

Up  to  this  time  the  approval  of  the  legislature  has  never 
been  withheld  from  a  charter  which  the  people  of  a  city  have 
first  ratified,  though  a  favorable  vote  on  the  charter  in  the 
referendum  within  the  city  itself  is  by  no  means  easy  to 
secure.  It  has  been  especially  difficult  in  San  Francisco  to 
present  the  draft  of  a  charter  which  the  people  would  accept. 
The  first  attempt  of  this  kind  was  made  in  1880  very  soon 
after  the  new  Constitution  of  California  was  adopted,  and 
only  at  the  fifth  election  on  this  subject  eighteen  years  later, 
or  in  1898,  was  a  majority  vote  obtained  in  favor  of  a  new 
body  of  fundamental  law  for  that  city.  These  elections 
were  held  on  September  8,  1880,  March  3,  1883,  April  12, 

21  The  vote  was  2642  for  the  charter  and  1890  against  it. 
32  Statutes  of  California  of   1893,  p.  545. 
23  Statutes  of  California  of  1899,  p.  241. 
™Ibid.,  p.  370.        *Ibid.,  p.  448. 


35°  THE  REFERENDUM  IN  AMERICA 

1887,  November  3,  1896,  and  May  26,  1898.  Each  time  a 
board  of  freeholders  had  been  elected  which,  sitting  and 
deliberating  and. voting  like  a  small  constitutional  conven- 
tion, prepared  and  proposed  a  charter  for  San  Francisco. 
The  charter  submitted  in  1880  was  overwhelmingly  defeated. 
The  total  vote  polled  was  23,398,  of  which  only  4,144  ballots 
were  in  favor  of  the  charter,  while  19,143  were  cast 
against  it,  the  rest  of  the  ballots  being  "  blanks  ".  It  is 
stated  that  "  the  most  active  opposition  to  the  charter  of 
1880  was  on  account  of  a  provision  introduced  in  the  chapter 
relating  to  the  health  department,  which  provided  that  from 
and  after  the  year  1885  no  human  body  should  be  buried 
within  six  miles  of  the  city  hall.  This  would  have  closed 
eleven  cemeteries  within  the  city  limits.  The  opposition 
was  led  by  the  Roman  Catholic  Church,  and  it  was  more 
effective  than  any  other  force  in  insuring  the  defeat  of  the 
charter  ",26 

The  second  charter  which  was  submitted  in  1883  met 
spirited  opposition  from  the  professional  politicians  who  are 
thought  to  have  "  counted  it  out  " — i.  e.,  it  was  defeated  after 
the  polls  were  closed.  "  The  returns  were  unaccountably 
slow  in  coming  in,  and  the  later  returns  were  all  against  the 
charter.  The  reports  from  the  first  59  precincts  showed  a 
majority  of  1,000  for  the  charter,  the  final  returns  gave  32 
against  the  instrument  in  a  total  vote  of  18,764  ",27  Four 
years  later,  in  1887,  when  the  third  charter  was  submitted  to 
the  people  it  was  foredoomed  to  failure  in  the  view  of  most 
persons,  though  it  called  out  a  larger  number  of  votes  than 
either  of  the  other  two  charters.  The  majority  against  it 
at  the  election  was  about  4,000  votes.  There  was  then  a 
lull  in  charter  making  in  San  Francisco  for  several  years. 
The  next  charter  was  drafted  in  time  for  its  submission  to 
the  people  at  a  special  election  which  was  to  have  been  held 
on  April  1 6,  1895,  but  the  poll  was  delayed  until  the  general 
election  in  1896,  when  there  were  15,879  ballots  cast  for  the 

28  San  Francisco  Argonaut  of  November  i,  1897. 
27  Ibid. 


ON  CITY  CHARTERS  35  r 

charter  and  17,978  against  it,  there  having  been  a  majority 
on  the  wrong  side,  therefore,  of  more  than  2,000  votes.  The 
total  number  of  votes  polled  for  candidates  at  this  election 
was  64,815.  Thus  it  appears  that  every  other  person  who 
voted  for  individual  candidates  for  office  had  so  little  interest 
in  the  subject  of  the  charter  that  he  did  not  declare  himself 
either  for  or  against  it.28  It  was  believed  that  the  attention 
of  the  voters  had  been  diverted  by  larger  issues.  A  con- 
viction spread  therefore  that  when  next  a  charter  should  be 
drafted,  it  should  be  submitted  at  a  special,  rather  than  a 
general  election,  and  the  fifth  attempt  was  made  on  May 
28,  1898,  when  a  majority  of  about  2,000  votes  was  re- 
corded in  favor  of  the  document,  so  that  the  long  and  tedious 
contest  between  the  "  politicians  "  and  the  friends  of  good 
government  in  San  Francisco  was  at  last  brought  to  an  end. 
The  charter  was  ratified  by  the  State  legislature  at  its  session 
of  1899.  It  went  into  effect  on  January  i,  1900,  and  a  better 
era  in  the  political  life  of  the  city  is  now  confidently  looked 
forward  to.  From  the  beginning  the  elements  in  control 
of  the  political  machine  in  San  Francisco  have  steadily  op- 
posed the  charters  which  have  been  drafted  by  the  free- 
holders. They  have  expressed  a  preference  for  the  old  sys- 
tem of  taking  municipal  law  from  the  State  legislature,  a 
method  which  they  understood  and  by  which  they  could 
secure  for  themselves  large  benefits.  It  is  scarcely  to  be  ex- 
pected that  they  will  not  discover  a  mode  after  a  while  of 
advantaging  by  the  freeholders'  charter,  but  they  will  at  any 
rate  be  under  the  rather  unpleasant  necessity  of  conducting 
some  experiments  with  popular  government  in  another  and 
an  unfamiliar  form. 

The  new  charter  was  supported  by  a  number  of  clubs  and 

28  In  a  letter  from  the  office  of  the  mayor  of  San  Francisco,  explain- 
ing the  small  vote  for  this  charter,  I  am  told  :  "  The  interest  of  the  citi- 
zens, being  centered  on  the  national  ticket  and  the  local  ticket,  naturally 
diverts  attention  from  the  charter  and,  as  a  consequence,  the  one  which 
was  passed  was  presented  at  a  special  election  at  which  there  was  no 
other  issue  and  experience  has  shown  us  that  this  is  the  only  way  an 
instrument  of  this  kind  can  be  adopted." 


352  THE  REFERENDUM  IN  AMERICA 

organizations  devoted  to  municipal  reform  and  the  campaign 
in  its  behalf  was  ably  led  and  actively  prosecuted.  The 
u  Citizens'  Charter  Association  "  issued  an  address  to  the 
people  in  which  they  said :  "  We  appeal  to  all  good  citizens 
to  endorse  the  work  of  their  freeholders  elected  last  De- 
cember and  thus  crystallize  into  law  an  honest  effort  to  save 
San  Francisco  from  the  rule  of  the  bosses,  the  water,  lighting 
and  railroad  corporations  and  allied  interests  which  have 
daily  dealings  with  the  city  government  and  which  have  in 
the  past  and  will  in  the  future,  unless  they  are  restrained, 
debauch  our  politics,  rob  the  people  and  paralyze  the  orderly 
operation  of  the  law.  .  .  .  The  people  can  amend  it  from 
time  to  time  if  it  prove  defective ;  but  they  can  never  have  a 
new  charter  offered  to  them  except  by  again  invoking  the 
elaborate  machinery  required  by  the  constitution  for  the  sub- 
mission of  a  freeholders'  charter.  This  is  the  fifth  charter 
offered  to  the  people.  Give  it  a  fair  trial  and  thus  do  your 
duty  to  your  municipality." 

It  is  this  charter  which  introduces  the  initiative  and  the 
referendum  of  the  Swiss  pattern  into  the  city  practice,  and 
makes  other  striking  reforms  in  municipal  government,  the 
working  out  of  which  students  of  political  institutions  in  this 
country  will  watch  with  attention  and  close  interest.  Thus 
while  San  Francisco  was  the  first  city  to  put  forth  an  effort 
to  secure  "  Home  Rule  "  in  California  it  is,  at  this  writing, 
among  the  last  in  the  State  to  have  availed  itself  of  the 
privilege  extended  it  by  the  constitution. 

Some  interesting  points  in  connection  with  these  self- 
governing  cities  of  California  have  been  brought  out  in  the 
judicial  opinions  emanating  from  the  higher  State  courts. 
The  Constitution  of  the  State  provided  that  a  charter,  when 
it  had  been  approved  by  the  people  of  the  city  should  be 
"  submitted  to  the  legislature  for  its  approval  or  rejection  ", 
and  if  accepted  by  a  majority  vote  of  the  members  elected 
to  each  house  it  should  become  the  charter  of  such  city. 
The  question  arose  as  to  whether  the  charter  should  not  also 
be  approved  by  the  Governor  as  in  the  case  of  ordinary  bills. 


ON  CITY  CHARTERS  353 

Four  charters  had  been  accepted  by  the  California  legis- 
lature in  1889  and  in  each  instance  this  was  done  by  joint 
resolution.  It  was  argued  in  behalf  of  Los  Angeles  that 
approval  by  this  method  would  not  suffice.  The  signature 
of  the  Governor  of  the  State  should  be  required  as  in  the 
case  of  ordinary  legislation.  The  Supreme  Court  to  which 
the  question  came  for  a  decision  drew  attention  to  the  spe- 
cific statement  in  the  constitution  that  the  charters  should  be 
"  submitted  to  the  legislature  ".  Now  the  Governor  was  no 
part  of  the  legislature.  He  was  a  part  of  the  general  law- 
making  authority  of  the  State,  but  this  was  one  thing  and 
the  legislature  was  another  and  a  different  thing.29  There- 
fore the  process  had  been  a  regular  one  and  the  one  that 
had  been  contemplated  by  the  framers  of  the  constitution. 
This  section  of  the  constitution  in  the  course  of  its  various 
changes  and  editings  was  later  amended  in  this  particular. 
It  was  specified  that  the  charter  should  be  "  submitted  to  the 
legislature  for  its  approval  or  rejection.  .  .  .  Such 
approval  may  be  made  by  concurrent  resolution  and  if  ap- 
proved by  a  majority  vote  of  the  members  elected  to  each 
house  it  shall  become  the  charter  of  such  city  ",  etc.  Lan- 
guage so  plain  will  avoid  any  further  question  with  respect 
to  this  interesting,,  if  rather  technical  point. 

In  California  as  in  Missouri,  it  has  been  difficult  to  deter- 
mine just  how  comprehensive  are  the  powers  of  the  State 
legislature  over  cities  which  have  adopted  freeholders' 
charters.  To  lay  down  definite  rules  regarding  this  matter 
seems  to  be  quite  out  of  the  question.  In  the  nature  of  the 
case  the  task  is  rendered  well  nigh  impossible.  Some  rather 
distinctive  results  have  been  arrived  at,  however,  in  Cali- 
fornia by  reason  of  the  careless  wording  of  the  constitution, 
as  it  left  the  hands  of  the  convention  in  1879.  ^n  one  sec- 
tion, for  instance,  the  constitution  declares  that  "  cities  and 
towns  heretofore  or  hereafter  organized,  and  all  charters 
thereof  framed  or  adopted  by  authority  of  this  constitution, 
shall  be  subject  to  and  controlled  by  general  laws  ".30  This 

29  Brooks  v.  Fischer,  79  Cal.  173.        80  Art.  xi,  sec.  6. 


354  THE  REFERENDUM  IN  AMERICA 

statement  appeared  however  to  be  in  conflict  with  the  sec- 
tion which  extended  to  cities  the  right  to  frame  their  own 
charters,  free  from  the  intervention  of  the  legislature.  In 
1890  this  seeming  contradiction  drew  forth  an  opinion  from 
the  Supreme  Court  of  the  State.  The  legislature  had  passed 
a  general  law  in  reference  to  streets  to  apply  to  all  the  cities 
of  California.  Los  Angeles,  having  provisions  of  a  different 
kind  in  the  freeholders'  charter  which  the  people  had  re- 
cently approved  and  the  legislature  had  ratified,  desired  ex- 
emption from  the  law,  but  this  was  refused.  The  court 
said :  "  A  charter  like  the  one  under  which  the  city  of  Los 
Angeles  exists  is  subject  to  general  laws  and  a  statute  like 
the  one  now  attacked  is  a  general  law  within  the  meaning 
of  the  constitution.  It  is  useless  to  discuss  the  propriety 
of  allowing  the  legislature  to  interfere  by  general  laws  with 
the  local  affairs  of  a  city.  The  constitution  so  provides  in 
plain  terms  and  so  far  as  the  courts  of  the  State  are  con- 
cerned this  must  settle  the  controversy.  If  the  power  given 
the  legislature  to  enact  laws  of  this  kind  is  an  evil  affecting 
the  rights  of  the  city  government  the  remedy  is  by  amend- 
ment of  the  constitution  ".31 

Acting  upon  the  advice  of  the  court  the  people  of  the  cities 
concerned  were  not  long  in  seeking  this  remedy.  Los  An- 
geles was  not  alone  in  her  dissatisfaction  at  being  put  under 
so  much  restraint.  San  Diego  and  other  cities  which  had 
adopted  freeholders'  charters  in  order  to  get  free  of  the  in- 
terfering legislation  of  the  General  Assembly  were  ready  to 
declare  that  such  a  restriction  went  far  to  nullify  the  advan- 
tages of  the  new  system.  And  so  in  fact  it  did.  The  consti- 
tution declared  that  the  charter  which  the  freeholders  framed 
should  be  "  consistent  with  and  subject  to  the  constitution 
and  laws  of  this  State  ",  that  it  should  be  "  approved  by  a 
majority  vote  of  the  members  elected  to  each  house  "  of  the 
State  legislature.  But  it  also  declared  that  the  charter  so 
adopted  "  shall  supersede  any  existing  charter  and  all  amend- 
ments thereof  and  all  special  laws  inconsistent  with  such 

21  Davies  v.  City  of  Los  Angeles,  86  Cal.  37, 


ON  CITY  CHARTERS  355 

charter  ",  while  elsewhere  in  the  constitution  it  was  provided, 
as  we  have  noted,  that  all  charters  "  framed  or  adopted  by 
authority  of  this  constitution  shall  be  subject  to  and  con- 
trolled by  general  laws  ".  How  were  such  inharmonious 
provisions  to  be  brought  into  agreement?  The  proposition 
was  to  amend  the  constitution  by  striking  out  the  word 
"  special  ",  which  I  have  italicized,  so  that  this  clause  thence- 
forth would  read :  "  And  supersede  any  existing  charter 
and  all  amendments  thereof  and  all  laws  inconsistent  with 
such  charter  ",  the  presumption  being  that  "  all  laws  "  would 
include  "  inconsistent ",  general  laws  as  well  as  those  of  a 
"  special  "  nature.  This  amendment  was  approved  by  the 
legislature  on  March  19,  1891,  and  was  submitted  to  the 
people  of  the  State  who  adopted  it  November  8,  1892,  by  a 
vote  of  114,617  to  42,076. 

The  California  cities  by  this  amendment  were  led  to  believe 
that  they  would  enter  upon  an  era  of  fuller  emancipation 
from  the  influence  of  the  State  legislature.  Though  to  a 
degree  they  have  been  disappointed  in  this  hope,  they  never- 
theless occupy  a  unique  position  among  their  sister  munici- 
palities in  this  country.  The  Supreme  Court  of  California 
in  defining  the  rights  of  the  cities  in  this  particular  in  a 
recent  opinion  said :  "  In  all  matters  which  may  affect  the 
State  at  large  or  whenever  any  legislation  is  in  its  judgment 
appropriate  for  all  parts  of  the  State  it  [the  legislature] 
possesses  all  the  legislative  power  of  the  State  that  has  not 
been  specifically  denied  to  it,  and  upon  whatever  subjects 
its  power  to  pass  a  general  law  exists  such  general  law  must 
be  the  controlling  rule  of  action  in  all  parts  of  the  State  and 
over  all  its  citizens  ".  A  subject  of  this  general  character 
the  court  held  the  public  school  system  to  be.  The  laws  in 
reference  to  public  education  are  of  general  and  uniform 
application,  even  in  cities  which  have  framed  their  own 
charters  and  may  have  adopted  other  and  conflicting  pro- 
visions regarding  this  question.32  There  can  be  no  escape 
from  the  conclusion  that  the  position  taken  by  the  judges 

32  Kennedy  v.  Miller,  97  Cal.  429. 


35 6  THE  REFERENDUM  IN  AMERICA 

in  this  case  is  thoroughly  sound,  and  also  no  escape  from 
another  conclusion  namely,  that  absolute  rules  in  this  field 
cannot  be  wisely  established.  To  make  a  city  wholly  free 
from  the  State  legislature's  control  is  a  foolish  ideal,  as 
wrong  in  principle  and  theory,  as  it  would  be  impracticable 
in  its  realization. 

When  the  convention  met  in  1889  to  draft  a  constitution 
for  the  new  State  of  Washington,  California's  Constitution 
was  looked  upon  as  a  valuable  source  of  legal  and  political 
forms  for  its  neighbor  commonwealth  on  the  Pacific  coast. 
Many  members  of  the  convention  had  received  their  civic 
training  in  California  and  among  the  features  which  they 
desired  to  introduce  in  the  Washington  Constitution  was  this 
section  in  reference  to  freeholders'  charters  in  cities.  After 
a  rather  prolonged  discussion  of  the  subject  by  the  delegates, 
a  provision  quite  similar  to  that  which  is  found  in  the  Consti- 
tutions of  Missouri  and  California  was  adopted,  to  apply  to 
any  city  in  the  State  containing  a  population  of  at  least 
20,000.  With  this  figure  as  a  minimum  it  was  provided  that 
a  board  of  fifteen  freeholders  should  be  elected  to  draft  a 
charter  and  refer  it  to  the  people  of  the  city  for  their  ap- 
proval or  rejection.  If  it  should  be  approved  by  a  majority 
of  those  electors  voting  on  the  subject  at  a  general  or  special 
election  it  would  come  into  effect  at  once  as  in  Missouri.  In 
Washington  there  was  no  provision  like  that  in  California, 
requiring  that  the  charter  should  be  referred  to  the  State 
legislature  for  its  approval  also.  Amendments  might  be- 
proposed  by  "  the  legislative  authority  "  of  the  city,  and  they 
became  parts  of  the  organic  law  of  the  municipality  when 
they  were  ratified  by  a  majority  vote  of  the  people  as  in  the 
case  of  the  original  charter.33  Seattle,  Tacoma,  Spokane, 
and  perhaps  one  or  two  other  cities,  have  adopted  freeholders' 
charters,  in  the  manner  prescribed  by  the  constitution,  and 
the  experience  of  a  few  years  has  furnished  useful  testimony 
as  to  the  value  of  this  important  municipal  reform. 

83  Constitution  of  Washington,  art.  xi,  sec.   10  ;   cf.  Ballinger's  Codes 
and  Statutes  of  the  State  of  Washington,  sees.  734  et  teq. 


ON  CITY  CHARTERS  357 

Patterning  its  work  after  a  similar  provision  in  California 
the  convention  in  the  State  of  Washington  fell  into  the  same 
errors  and  inconsistencies  which  in  the  former  State  it  has 
been  necessary  to  correct  by  constitutional  amendment. 
The  constitution  provided  that  the  charter  which  the  city 
should  frame  for  its  own  government  should  be  "  consistent 
with  and  subject  to  the  constitution  and  laws  of  the  State  ". 
It  declared  furthermore  that  all  charters  adopted  by  au- 
thority of  the  constitution  including  freeholders'  charters 
should  "  be  subject  to  and  controlled  by  general  laws ", 
going  on  to  specify  that  the  freeholders'  charter  when 
adopted  by  a  vote  of  the  people  should  "  supersede  any  ex- 
isting charter  including  amendments  thereto  and  all  special 
laws  inconsistent  with  such  charter ".  This  of  course  is 
an  exact  literal  transcript  of  the  corresponding  provision 
in  the  Constitution  of  California  prior  to  the  amendment  of 
that  instrument  in  1892.  By  general  laws  the  State  legis- 
lature may  circumvent  the  constitutional  guaranty  to  the 
cities  and  prevent  the  attainment  of  the  very  object  which 
the  makers  of  the  constitution  all  the  while  had  in  view.  Up 
to  this  time,  however,  no  organized  effort  has  been  made  in 
Washington  to  find  a  remedy  such  as  has  been  sought  out 
and  applied  in  California. 

The  Supreme  Court  of  the  State  has  been  called  upon  sev- 
eral times  to  fix  a  boundary  of  authority  between  the  State 
legislature  and  the  new  semi-independent  city,  but  without 
marked  success.  We  are  asked  to  remember  for  example 
that  these  provisions  in  regard  to  cities  are  "  somewhat  un- 
usual and  extraordinary  provisions  and  that  they  are  indirect 
restrictions  on  the  power  of  the  legislature  which  can  pre- 
scribe rules  for  the  government  of  every  municipal  corpor- 
ation but  these  "34.  The  court  on  several  occasions,  how- 
ever, has  upheld  the  legislature  in  measures  to  restrain  the 
cities  from  exercising  their  independent  powers  in  respect 
of  general  State  matters.  In  denying  the  right  of  the  city  of 
Tacoma  to  establish  a  special  tribunal  and  clothe  it  with 

**  State  ex  rel.  Snell  v.  Warner,  4  Wash.  773. 


358  THE  REFERENDUM  IN  AMERICA 

power  to  try  contested  election  cases  the  Supreme  Court 
effectually  discredited  the  claim  that  cities  which  had 
adopted  freeholders'  charters  were  invested  "  with  all  the 
authority  to  legislate  upon  local  matters  that  had  theretofore 
been  exercised  by  the  legislature  ",35 

And  again  when  it  was  necessary  to  call  attention  to  the 
fact  that  the  right  of  eminent  domain  still  adhered  to  the 
State  government,  even  after  the  cities  had  taken  advantage 
of  this  provision  of  the  constitution  and  had  become  in  a 
measure  self-governing,  the  court  said :  "  Because  the  con- 
stitution permits  certain  cities  to  frame  charters  for  their 
own  government  is  no  sufficient  reason  for  their  assuming 
a  branch  of  the  sovereignty  of  the  State  which  has  no  ele- 
ment of  municipal  government  in  it.36 

The  fourth  State  to  permit  cities  to  frame  their  own 
charters  under  constitutional  guaranty  is  Minnesota  which 
has  only  very  recently  introduced  this  reform  into  her  sys- 
tem. At  the  general  election  in  1896  the  people  of  the  State 
by  a  vote  of  107,086  to  58,312  adopted  a  constitutional 
amendment  which  conferred  a  large  degree  of  independence 
upon  the  cities  (and  villages)  of  Minnesota.  The  amend- 
ment was  itself  amended  respecting  some  slight  details  in 
1898.  There  are  several  interesting  and  notable  features 
of  the  system  as  it  has  been  worked  out  in  Minnesota  which 
differentiate  it  from  the  corresponding  provision  in  Missouri, 
California  and  Washington.  There  is  absolutely  no  mini- 
mum as  to  population.  "  Any  city  or  village  "  may  frame 
its  own  charter  which  it  is  to  receive  from  a  board  of  fifteen 
freeholders.  This  board,  however,  is  to  be  a  permanently 
constituted  body  appointed  by  the  district  judges  of  the  ju- 
dicial district  in  which  the  city  or  village  is  situated,  instead 

35  State  v.  Superior  Court,   14  Wash.  604. 

^Tacoma  v.  The  State,  4  Wash.  64;  cf.  State  ex  rel.  Wiesenthal  v. 
Denny.  4  Wash.  135  ;  State  ex  rel.  Snell  v.  Warner,  4  Wash.  773J  Sey- 
mour v.  Tacoma,  6  Wash.  138;  Howe  v.  Barto,  12  Wash.  627;  State  ex 
rel.  Seattle  v.  Carson,  6  Wash.  250. 


ON  CITY  CHARTERS  359 

of  being  elected  by  the  people  as  in  the  other  States.  The 
freeholders  are  appointed  for  six  years  (by  the  original 
amendment  of  1896  for  life)  and  vacancies  by  reason  of  ex- 
piring terms  or  for  any  other  cause  are  filled  in  the  manner 
in  which  the  members  were  first  chosen.  The  board  must 
"  always  contain  its  full  complement  of  members ".  The 
charter  must  be  submitted  to  the  people  and  a  four-sevenths 
majority  vote  is  necessary  for  its  ratification.  The  board 
of  freeholders  also  proposes  and  submits  charter  amend- 
ments which  are  adopted  when  ratified  by  three-fifths  of 
those  voting  upon  them  at  a  city  election,  though  five  per 
cent  of  the  legal  voters  of  any  city  or  village  may  originate 
and  can  compel  the  freeholders  to  refer  any  desired  amend- 
ment to  popular  vote. 

Neither  the  charter  nor  an  amendment  needs  the  approval 
of  the  legislature.  State  supervision  and  control  over  the 
municipality  are  secured  by  other  means.  It  is  provided 
in  the  first  place  that  the  charter  shall  be  "  in  harmony  with 
and  subject  to  the  constitution  and  the  laws  of  the  State  ". 
It  shall  "  supersede  any  existing  charter  and  amendments 
thereof  ",  but  it  is  expressly  permitted  of  the  legislature,  if 
it  selects  to  avail  itself  of  the  privilege,  to  pass  general  laws 
which  shall  be  in  force  in  the  cities  and  villages  coincidently 
with  the  freeholders'  charters.  Four  classes  of  cities  may  be 
legislated  for  in  this  general  way  (three  classes  by  the  orig- 
inal provision  of  1896).  These  are  as  follows:  (i)  Cities 
having  more  than  50,000  inhabitants;  (2)  cities  having 
50,000  and  not  less  than  20,000  inhabitants;  (3)  cities  con- 
taining a  population  of  20,000,  and  not  less  than  10,000,  and 
(4)  cities  containing  10,000  or  a  less  number  of  inhabitants. 
These  general  laws  with  respect  to  the  cities  within  any  given 
class  are  to  be  "  paramount  while  in  force  to  the  provisions 
relating  to  the  same  matter  included  in  the  local  charter 
herein  provided  for ".  In  no  case  and  under  no  circum- 
stance shall  a  provision  of  a  local  charter  or  any  ordinance 
passed  by  its  authority  "  supersede  any  general  law  of  the 


36°  THE  REFERENDUM  IN  AMERICA 

State  defining  or  punishing  crimes  or  misdemeanors  ".  In 
this  field  the  State  is  to  be  supreme.37 

As  indicating  an  attempt  to  exercise  a  certain  restraint  over 
the  city  and  as  illustrating  the  persistency  with  which  we 
cling  to  old  forms  in  local  government  in  the  United  States, 
it  is  interesting  to  note  a  provision  in  this  new  section  of  the 
Constitution  of  Minnesota,  specifying  that  in  any  charter 
submitted  to  the  people  by  these  boards  of  freeholders  the 
scheme  of  government  shall  include  "  a  mayor  or  chief 
magistrate  and  a  legislative  body  of  either  one  or  two 
houses  ".  If  there  are  two  houses  "  at  least  one  of  them 
shall  be  elected  by  general  vote  of  the  citizens  ". 

Summarizing  and  recapitulating  a  little,  we  find  that  in 
all  four  of  the  States  in  which  the  cities  may  adopt  their  own 
charters — Missouri,  California,  Washington  and  Minnesota 
— these  instruments  are  framed  by  a  "  Board  of  Freehold- 
ers ",  i.  e.,  a  committee  of  citizens  of  the  municipal  district 
for  which  the  new  scheme  of  government  is  intended.  This 
board  is  composed  of  fifteen  members,  except  in  the  case  of 
Missouri  where  thirteen  suffice.  In  all  the  States  but  Min- 
nesota this  body  is  elected  by  the  people  of  the  city  with  the 
single  special  task  of  drafting  a  charter.  In  Minnesota  the 
members  are  appointed  by  the  local  judges  and  the  board 
is  a  permanent  body  the  members  serving  for  a  term  of  six 
years,  reappointments  being  made  and  vacancies  being  filled 
by  the  same  authority. 

The  privilege  is  restricted  to  cities  containing  a  certain 
definite  number  of  inhabitants,  except  in  Minnesota  where 
all  cities  and  villages,  no  matter  what  their  size,  may  frame 
their  own  charters.  In  California  the  lowest  limit  is  a  pop- 
ulation of  3,500  (earlier  10,000  and  still  earlier  100,000)  ; 
in  Washington  20,000  and  in  Missouri  100,000.  In  all 
four  States  the  charters,  being  drafted,  are  submitted  to  the 
people  for  their  approval,  a  simple  majority  vote  sufficing 
in  St.  Louis  and  in  California  and  Washington,  a  four- 

87  Constitution  of  Minnesota,  art.  iv,  sec.  36  ;  General  Laws  of  Minne- 
sota for  1897,  p.  507  ;  cf.  ibid.,  p.  v  and  pp.  473  ei  seq. 


ON  CITY  CHARTERS  361 

sevenths  majority  being  necessary  in  cities  of  Missouri  other 
than  St.  Louis  (Kansas  City)  and  in  Minnesota.  In  one 
State,  California,  the  charter  when  it  has  been  adopted  by 
the  people  must  be  subsequently  referred  to  the  State  legis- 
lature, though  for  its  "  approval  or  rejection  as  a  whole  " 
without  power  of  alteration  or  amendment  in  details. 
Amendments  to  the  charter  in  three  States — Missouri,  Cal- 
ifornia and  Washington — may  be  proposed  by  the  "  legisla- 
tive authority  "  of  the  city  and  in  the  fourth,  Minnesota,  by 
the  permanently  constituted  board  of  freeholders  or  by  five 
per  cent  of  the  legal  voters  of  the  municipality.  The 
amendments  must  be  submitted  to  the  people  of  the  city,  as 
were  the  original  charters,  and  must  be  approved  by  them, 
a  three-fifths  vote  being  necessary  in  Missouri,  California 
and  Minnesota,  a  simple  majority  sufficing  in  the  State  of 
Washington.  In  California  amendments  like  the  charters 
must  be  ratified  by  the  State  legislature. 

The  freeholders'  charters  are  subject  to  "  general  laws  " 
of  the  State  legislature  by  express  provision  in  Minnesota, 
and  by  fair  implication  in  Missouri  and  Washington.  In 
California  the  constitutional  amendment  of  1892  has  made 
the  cities  more  free  than  they  earlier  were,  though  in  the 
nature  of  the  case  they  are  still  under  the  legislature's 
supervision  in  respect  of  general  State  matters.  In  no  one 
of  the  four  States  up  to  this  time  have  the  boundaries  be- 
tween State  and  local  authority  been  clearly  defined  and 
appeals  to  the  courts  are  frequent  with  a  view  to  determining 
disputed  points  which  constantly  arise. 

It  is  interesting  in  this  connection  to  consider  a  measure 
looking  to  the  greater  independence  of  cities  from  the  in- 
fluence of  the  State  legislature  which  was  lately  adopted 
in  New  York.  The  convention  which  met  to  revise  the 
Constitution  of  that  State  in  1894  was  appealed  to  in  behalf 
of  the  larger  cities  whose  local  affairs  were  being  greatly 
disturbed  by  legislative  interferences,  and  there  were  some 
of  the  delegates  who  would  have  been  willing  to  go  so  far 
along  the  line  of  Home  Rule  as  to  introduce  a  provision  per- 


362  THE  REFERENDUM  IN  AMERICA 

mitting  municipalities  to  frame  their  own  charters.  A 
number  of  amendments  relative  to  Home  Rule  for  cities 
were  proposed  by  various  delegates  to  the  convention.  At 
least  two  of  these  propositions  were  derived  directly  from 
the  Constitutions  of  Missouri,  California  and  Washington.38 
Such  a  step,  however,  seemed  like  a  long  one.  There  were 
many  of  the  more  conservatively  minded  who  desired  that 
this  subject  should  be  approached  from  another  direction, 
and  a  scheme  therefore  was  devised  which  is  in  fuller  har- 
mony with  the  representative  system  of  government. 

The  cities  of  the  State  are  divided  into  three  classes.  The 
first  class  includes  all  cities  having  a  population  of  250,000 
or  more;  the  second  class,  cities  having  50,000  inhabitants, 
but  less  than  250,000;  the  third  class  all  cities  containing 
less  than  50,000  inhabitants.  The  legislature  may  pass  gen- 
eral laws  for  all  the  cities  of  the  State,  or  for  all  the  cities  of 
a  certain  class,  at  will  without  consultation  with  any  local 
authority,  but  in  respect  of  special  laws  which  relate  to  one 
city  or  several  cities  (not  all)  of  a  class  the  measures  must 
be  first  transmitted  to  the  particular  municipality  or  munic- 
ipalities affected  by  the  proposed  legislation.  When  any 
such  bill,  whether  it  be  a  charter,  a  bill  to  amend  a  charter, 
or  any  other  special  law  relating  to  city  government,  has 
been  passed  by  both  houses  of  the  legislature  it  is  sent  to 
the  mayor  of  the  city  to  which  it  refers.  He  is  not  author- 
ized to  submit  the  bill  to  popular  vote,  but  he  can  arrange 
for  a  public  hearing,  when  all  persons  who  have  an  interest 
in  the  subject  may  appear  to  present  their  objections  to  the 
measure  should  they  have  any.  In  all  cities  of  the  State, 
except  those  of  the  first  class,  where  the  matter  is  entirely 
in  his  own  hands,  the  mayor  is  to  act  concurrently  with  the 
local  legislative  body  in  performing  this  unusual  function, 
and  within  fifteen  days  in  the  name  of  the  city  he  must  return 
the  bill  to  the  State  legislature  with  his  approval  or  his  veto. 

88  Cf.  Proposed  Constitutional  Amendments  of  the  New  York  Con- 
stitutional Convention,  Vol.  I,  no.  113  by  Mr.  Tucker,  and  no.  139  by 
Mr.  Turner. 


ON  CITY  CHARTERS 

If  the  legislature  has  already  adjourned  and  the  session  has 
terminated  the  bill  with  the  mayor's  certificate  is  sent  to  the 
Governor.  Should  the  bill  be  accepted  by  the  locality  to 
which  it  relates,  it  is  still  subject  to  the  Governor's  veto.  He 
may  disregard  the  legislature's  and  the  city's  wishes  in  such 
a  matter  if  he  believes  his  course  to  be  for  the  welfare  of 
the  State.  Should  the  bill  be  disapproved  of  by  the  mayor 
or  should  it  be  held  by  that  officer  beyond  the  constitutional 
limit  of  time — fifteen  days — it  may  nevertheless  again  be 
passed  by  the  legislature.  Then  too,  however,  it  is  still  sub- 
ject to  the  action  of  the  Governor,  as  are  other  bills.  It  is 
provided  furthermore  that  any  such  special  law  shall  plainly 
indicate  in  its  title  whether  it  has  been  "  accepted  by  the 
city  ",  or  whether  it  has  been  "  passed  without  the  accept- 
ance of  the  city  ",39 

Of  all  the  devices  which  have  been  proposed  as  a 
means  of  protecting  American  cities  from  the  undue  inter- 
ference and  the  increasing  meddlesomeness  of  the  State  leg- 
islatures, whose  members  through  ignorance  or  lust  of  power 
and  gain,  have  driven  us  to  the  point  of  seeking  these  im- 
portant constitutional  reforms,  the  system  so  recently 
adopted  in  New  York  will  most  commend  itself  to  the  judg- 
ment of  careful  students  of  this  subject.  As  universal  as 
the  prohibition  of  it  has  become  in  the  past  quarter  century, 
we  are  beginning  to  realize  that  in  the  very  nature  of  things 
special  legislation  for  localities  is  sometimes  necessary. 
There  are  matters  of  local  administration  which  cannot  be 
satisfactorily  brought  under  a  general  head.  For  the  good 
of  the  city  or  other  community  which  the  system  was  in- 
vented and  designed  to  protect  special  laws  are  demanded. 
To  prohibit  them  was  a  temporary,  expedient  and  a  makeshift 
at  best.  It  was  an  outgrowth  of  the  irrepressible  conflict 
between  the  constitutional  convention  and  the  legislature 
which  has  been  in  progress  for  so  many  years.  "  The  leg- 
islature has  shown  a  marked  incapacity  to  perform  the  great 
tasks  heretofore  assigned  it,  therefore  we  will  restrict  it  in 

89  Constitution  of  New  York  as  amended  in  1894,  art.  xii,  sec.  at 


3^4  THE  REFERENDUM  IN  AMERICA 

the  exercise  of  its  authority  and  distribute  the  power  among 
other  agents,"  argued  the  makers  of  the  constitutions.  It 
was  perceived  that  great  evils  had  crept  into  the  system  of 
government  within  the  States  by  reason  of  the  development 
of  modern  cities.  Through  their  influence  there  was  a 
lowering  of  moral  standards  in  the  legislatures,  and  a  serious 
interference  with  a  natural  working  out  of  political  problems 
in  these  great  urban  districts  as  well  as  in  the  rural  parts  of 
the  State.  The  conventions  sought,  therefore,  to  divide  all 
legislation  of  this  kind  into  two  kinds,  general  and  special 
legislation.  What  the  legislature  desired  to  do  in  respect 
of  the  different  localities  under  its  authority  the  constitu- 
tions required  it  to  embody  in  general  laws  which  should 
apply  not  to  one  specific  city,  but  to  all  cities  or  localities 
of  a  general  class. 

I  have  noted  in  earlier  chapters  to  what  dishonest  subter- 
fuges this  prohibition  has  led.  Classes  have  been  created 
which  contain  but  a  single  city  or  a  single  county,  and  al- 
though we  may  dismiss  the  subject  by  throwing  the  blame 
upon  the  legislature  which  takes  this  course  in  order  to  evade 
the  plain  intent  and  purpose  of  the  law  and  resume  its  old- 
time  activity  as  a  creator  of  evil  and  confusion  in  local  gov- 
ernment, there  is  no  escaping  the  thought  that  the  legislature 
is  only  seeking  to  do  that  which  it  ought  to  do,  and  that 
which  there  is  real  need  that  it  should  do.  No 
well  informed  person  would  contend  that  the  legis- 
lature is  not  the  rightful  custodian  of  this  authority 
under  our  system  of  government.  Municipal  corporations 
are  the  creations  of  the  State  legislatures  except  in  so  far 
as  this  relation  has  been  altered  by  recent  changes  in  the 
State  constitutions.  In  the  natural  course  of  events  we 
cannot  conceive  of  the  legislatures  having  lost  any  consider- 
able part  of  the  full  measure  of  their  authority  over  the 
municipalities  if  the  power  had  not  been  abused,  and  gross 
blunders  had  not  been  committed  in  the  field  of  local  gov- 
ernment. It  was  an  extreme  measure  which  may  have  had 
justification  in  the  seriousness  of  the  evil  it  was  meant  to 


ON  CITY  CHARTERS  365 

correct,  though  it  bears  some  resemblance  to  the  case  of  the 
owner  barricading  the  windows  and  doors  of  his  house  to 
keep  out  marauders,  while  he  must  himself  enter  it  by  the 
chimney. 

As  the  prohibition  of  special  laws  was  a  radical  step  we 
must  regard  the  attempt  of  Missouri,  California,  Washing- 
ton and  Minnesota  to  solve  this  problem  in  the  same  light. 
A  charter  for  a  city  might  as  well  be  adopted  by  the  mem- 
bers of  a  board  of  freeholders  elected  by  the  citizens,  if  they 
were  persons  competent  to  frame  such  a  charter,  as  by  any 
other  committee  of  persons.  But  experience  has  demon- 
strated that  the  city  to  a  greater  or  a  less  extent  must  still  be 
subject  to  the  legislative  and  institutional  system  of  the  State 
within  which  it  is  situated  and  of  which  it  is  a  part.  In 
every  instance  it  is  recognized  that  the  charter  so  adopted 
must  be  "  consistent  with  and  subject  to  the  constitution 
and  laws  of  the  State  ".  Our  better  judgment  tells  us,  and 
theory  and  experience  enforce  us  in  the  opinion  that  the  city, 
however  great  a  degree  of  independence  it  may  have  appar- 
ently attained,  cannot  be  really  free  of  the  legislature's  super- 
vising control.  Many  subjects  must  still  be  regulated  by 
uniform  laws  and  judicial  opinion  has  been  very  generally 
on  the  side  of  the  legislature  whenever  conflict  of  authority 
has  arisen  between  the  city  and  the  State. 

No  other  view  can  be  entertained  despite  the  fact  that 
State  laws  oftentimes  appear  to  be  onerous  to  local  interests 
which,  being  partially  freed  from  outside  restraint,  would 
prefer  a  still  larger  measure  of  independence.  The  free- 
holders' charter  which  the  people  adopt  by  a  plebiscite,  it 
must  be  acknowledged,  is  yet  passing  through  its  experi- 
mental stages  and  although  it  marks  a  tendency,  it  cannot 
be  said  to  be  an  ultimate  thing.  That,  to  avoid  needless  dis- 
putes as  to  authority  which  the  judiciary  must  constantly 
arbitrate,  some  device  is  required  is  evident  when  Minne- 
sota's recent  suggestion  is  taken  into  account.  In  that 
State  it  is  plainly  recognized  that  the  city  must  be  under  the 
legislature's  direction  as  before,  and  the  constitution  provides 


366  THE  REFERENDUM  IN  AMERICA 

that,  though  thVy  may  have  their  freeholders'  charters  cities 
must  at  the  same  time  live  under  "  general  laws  ",  which  in 
their  own  province  are  to  be  "  paramount  while  in  force  to 
the  provisions  relating  to  the  same  matter  included  in  the 
local  charters."  There  can  be  no  dispute  here,  for  whenever 
the  local  charter  and  the  general  law  overlap  and  conflict  the 
constitution  states  specifically  that  the  general  law  shall  have 
the  precedence. 

There  is  still,  by  the  Minnesota  system,  however,  no  room 
for  special  legislation  in  reference  to  cities.  To  find  a 
system  harmonizing  this  idea  with  the  idea  of  Home  Rule, 
by  which  municipalities  may  in  some  degree  determine  the 
character  of  the  laws  passed  for  their  own  government,  has 
been  reserved  for  New  York.  In  New  York  since  the  con- 
stitution was  revised  in  1894  the  enactment  of  special  laws 
relative  to  cities  is  permitted  of  the  legislature,  but  these  laws 
as  bills  must  be  referred  to  the  municipal  authorities  of  the 
city  which  is  directly  affected  by  them.  The  mayor  of  the 
city  may  give  the  bill  submitted  to  him  a  public  hearing  and 
he  may  veto  it,  if  he  sees  fit,  though  his  veto  is  without  any 
effect  if  the  legislature  chooses  to  pass  the  measure  over  his 
negative  and  the  governor  chooses  to  sign  it.  It  becomes 
a  law  anyhow,  though  in  that  event  it  is  expressly  declared 
in  its  title,  for  the  information  of  all  whom  it  may  concern, 
that  it  was  "  passed  without  the  acceptance  of  the  city  ". 
This  constitutional  provision  legally  opens  the  way  to  special 
legislation,  when  the  State  legislature  may  adjudge  such 
laws  to  be  needful.  It  requires  that  all  such  acts  shall  be 
referred  to  the  regularly  delegated  officials  within  each  city, 
whose  government  the  legislature  proposes  to  change, 
though  it  recognizes  the  supreme  authority  of  the  legislature, 
the  governor  and  other  agencies  to  which  the  general  wel- 
fare has  been  committed  by  the  sovereign  people,  when  it 
provides  a  method  for  the  enactment  of  the  law  in  spite  of 
possible  petty  local  hostility. 

Thus  while  some  difficulties  are  put  in  the  way  of  special 
legislation  for  cities  it  is  not  made  wholly  impossible.  The 


ON  CITY  CHARTERS  3^7 

reference  of  the  bill  to  the  locality  to  be  affected  by  it  affords 
an  opportunity  for  public  discussion  of  the  subject,  and 
should  it  really  be  an  unworthy  measure,  it  is  reasonable  to 
think — at  least  this  is  the  underlying  theory — that  it  could 
not  be  so  easily  passed  a  second  time  in  the  face  of  local  dis- 
approval. Whatever  the  final  outcome  of  this  interesting 
contest  between  the  city  and  the  State,  regarding  municipal 
government,  it  is  plain  that  we  are  all  the  while  tending 
toward  results  which  promise  soon  to  be  more  definite,  and 
it  may  be  hoped  more  satisfactory  to  all  the  important  inter- 
ests involved.  If  New  York  has  taken  a  step  in  this  direc- 
tion and  has  proven  herself  wise  beyond  her  sister  States 
in  the  treatment  of  this  question  her  example,  it  may  be 
inferred,  will  be  generally  followed  throughout  the  country 
within  a  very  few  years. 


CHAPTER  XV 

THE  INITIATIVE  IN   AMERICA 

UP  to  this  point  we  have  been  devoting  our  attention  chiefly 
to  the  referendum,  an  institution  which  is  clearly  of  ancient 
lineage  in  the  United  States,  but  which  recently  has  been  ma- 
king history  for  itself  in  some  parts  of  the  Union  at  a  par- 
ticularly rapid  rate.  Only  incidental  allusions  have  been 
made  to  the  right  of  the  people  themselves  to  initiate  legisla- 
tion, a  subject  which  is  to  be  considered  in  a  general  way 
in  the  present  chapter.  It  would  seem  that  the  referendum 
could  scarcely  exist  anywhere  without  the  initiative,  and  the 
experience  of  the  American  States  certainly  does  not  mark 
them  out  as  exceptions  to  the  rule  in  this  respect.  In 
Switzerland  the  one  is  closely  associated  with  the  other  and 
whenever  a  reformer  of  our  constitutional  system  in  the 
United  States,  of  whom  there  are  now  so  many,  proposes 
the  referendum,  as  a  means  of  clearing  the  atmosphere  of 
much  that  is  evil  in  our  political  life,  he  in  the  same 
breath  asks  that  the  initiative  shall  be  given  a  trial  also. 

The  initiative  and  the  referendum,  the  initiative  being 
mentioned  logically  first,  have  been  introduced  as  insepar- 
able parts  of  a  whole  into  the  legislative  practice  of  South 
Dakota,  Nebraska,  California,  Iowa  and  the  city  of  San 
Francisco  and  they  exist  together  in  fact,  if  not  in  name,  in 
nearly  all  the  States  of  the  Union.  For  what  is  the  system 
of  petition  for  the  passage  of  a  law  but  the  initiative?  It 
is  true  that  the  dearly  bought  right  of  the  people  to  petition 
their  kings  and  governors  for  a  redress  of  grievances,  of 
which  we  still  see  many  surviving  forms  even  in  free  states, 
is  not  the  right  of  initiative.  A  petition  more  or  less  nu- 
merously signed  by  citizens  for  the  enactment  of  a  law  or  the 

368 


THE  INITIATIVE 

repeal  of  a  law  is  merely  an  appeal  to  a  legislature,  the  mem- 
bers of  which  will  afterward  do  quite  as  they  please  regard- 
ing  this  matter  when  the  time  comes  for  definite  action  on 
their  part.  But  the  system  which  has  long  been  with  us  in 
the  New  England  towns  and  in  our  local  communities  or- 
ganized according  to  the  representative  principle,  prescribing 
that  a  certain  number  of  citizens  may  unite  in  a  petition  in 
favor  of  some  local  policy — the  laying  out  of  a  new  road,  the 
vacating  of  a  street  or  the  enclosure  of  domestic  animals,  is 
the  initiative  in  one  of  its  true  forms.  This  needs  no  partic- 
ular demonstration,  whether  the  petition  of  the  citizens  inter- 
ested in  the  settlement  of  this  local  question  enacts  the  ordi- 
nance and  executes  the  by-law  of  its  own  force  and  at  once, 
or  whether  it  merely  brings  the  subject  before  the  people 
so  that  they  can  vote  upon  it  in  the  town-meeting  or  by  way 
of  the  referendum.  In  a  very  great  number  of  cases  there 
must  be  a  moment  set  when,  a  local  ordinance  or  administra- 
tive measure  shall  come  into  effect;  the  enacting  authority 
must  name  some  condition  which  shall  be  fulfilled  before  the 
vote  can  be  ordered,  and  the  referendum  taken.  The  legisla- 
ture which  desires  that  its  laws  in  respect  of  localities  shall 
be  self-operating,  and  which  cannot  pretend  to  determine 
on  its  own  account  small  details  of  government  in  a  munici- 
pality or  other  political  subdivision  of  a  State,  prefers  to 
commit  the  task  to  the  people  themselves,  rather  than  to 
local  boards  and  officers. 

The  referendum  has  been  described  as  a  condition  prece- 
dent to  the  taking  effect  of  a  law;  the  initiative  is  a  condi- 
tion precedent  to  the  referendum.  The  referendum,  itself 
in  the  nature  of  a  contingency,  is  made  to  depend  upon  a 
contingency,  and  that  is  the  filing  with  representative  local 
officials  of  a  petition  signed  by  a  definite  number  of  persons, 
asking  that  the  citizens  residing  within  a  given  district  shall 
have  the  opportunity  to  say  yea  or  nay  on  the  proposition 
that  it  shall  be  governed  by  the  terms  of  a  certain  local  by- 
law which  the  State  legislature  has  proposed.  Thus  a  pre- 
scribed number  of  signatures  from  ten  to  several  thousand, 


3?o  THE  REFERENDUM  IN  AMERICA 

according  to  the  size  of  the  district,  its  population,  the  de- 
sire to  encourage  or  discourage  the  taking  of  the  vote,  the 
whims  of  the  legislatures  and  other  controlling  influences 
and  circumstances,  must  be  secured  in  a  locality  before  the 
election  can  be  held.  Sometimes  the  requirement  is  for  a 
petition  signed  by  a  definite  number  of  persons,  as  ten  free- 
holders, one  hundred  qualified  voters,  two  hundred  resident 
taxpayers,  etc.  Again  the  law  may  require  a  certain  per- 
centage of  the  whole  number  of  qualified  electors  registered 
within  the  district,  or  of  the  electors  voting  at  the  last  elec- 
tion as  10  per  cent,  15  per  cent,  20  per  cent,  25  per  cent; 
or  the  literal  condition  may  be  one-tenth,  one-fourth,  one- 
third,  two-fifths,  three-fifths,  a  majority  or  even  three- 
fourths  of  the  legal  voters.  The  legislature  instead  of  enact- 
ing the  law,  requiring  the  referendum  to  be  taken  on  a  cer- 
tain fixed  date,  on  regularly  recurring  dates,  or  on  the  mo- 
tion of  local  judges,  commissioners,  mayors  and  boards, 
places  upon  the  shoulders  of  the  people  themselves  the  re- 
sponsibility of  deciding  when  the  time  has  come  for  an 
election  on  the  subject.  The  prohibition  of  special  legis- 
lation in  recent  years  and  the  restriction  of  the  State  legis- 
latures' activities,  in  respect  of  localities,  to  "  general  laws  " 
have  exerted  a  powerful  influence  to  forward  this  develop- 
ment. For  if  the  legislature  cannot  adopt  the  laws  which 
are  required  by  any  particular  community,  and  the  need  for 
such  legislation  still  exists,  the  natural  tendency  is  toward 
the  enactment  of  the  great  codes  of  general  laws  now  made 
so  familiar  to  us  in  many  of  the  States.  These  codes  have 
become  so  comprehensive  as  to  include  almost  any  possible 
case  which  from  time  to  time  may  arise  out  of  the  exi- 
gencies of  local  government.  The  legislature  passes  the 
laws  without  saying  whether  or  not  they  are  needed  by  all, 
or  by  any  one  of  the  communities  to  which  they  purport 
to  relate.  It  does  not  even  go  so  far  as  to  say  that  the  laws 
shall  be  submitted  to  the  people  in  the  various  districts, 
for  elections  are  expensive  and  troublesome  and  should  be 
avoided  when  they  are  likely  to  fulfil  no  purpose.  An  ordi- 


THE  INITIATIVE  37* 

nance  which  would  be  useful  to  one  community  might  be  with- 
out applicability  to  another,  and,  furthermore,  while  without 
direct  interest  for  a  locality  at  one  time  might  at  another  time, 
a  few  years  hence,  be  of  much  practical  importance  to  the 
same  locality.  The  legislature  being  unable  to  decide  these 
matters  for  itself, — whether  any  given  ordinance  should  be 
made  to  apply  to  the  localities  or  not  and  if  so  to  which 
ones,  and  when,  finds  a  simple  way  out  of  its  many  difficulties 
in  the  signed  petition,  or  the  initiative.  Shall  the  law  which 
has  been  passed  by  the  State  legislature  apply  to  a  particular 
locality?  The  people  will  decide  by  the  referendum.  When 
shall  the  referendum  be  taken  ?  The  people  will  decide  by  the 
initiative. 

Instances  are  so  innumerable  that  it  is  a  matter  of  chance 
in  selecting  even  leading  forms.  A  few  will  have  to  suffice 
since  it  is  a  subject  so  closely  bound  up  with  the  referendum 
that  to  cover  the  field  fully  again  in  this  place  would  be  but 
a  repetition  of  much  that  has  been  said  in  earlier  chapters. 
The  initiative  occurs  in  connection  with  propositions  to  in- 
corporate cities  and  villages,  to  "  advance "  or  "  reduce " 
their  grade,  to  organize  levee  districts  and  irrigation  dis- 
tricts, to  loan  the  public  credit  and  issue  bonds,  to  levy  taxes 
for  special  purposes,  to  change  city  and  county  boundary 
lines,  to  remove  county  seats,  to  make  the  enclosure  of 
various  species  of  live  stock  obligatory,  to  prohibit  the 
manufacture  or  traffic  in  alcoholic  liquors,  to  sell  public 
lands  and  to  enact  a  great  variety  of  by-laws  and  enforce 
many  different  regulations  having  to  do  with  local  manage- 
ment. 

In  reference  to  local  option  liquor  laws,  for  instance,  we 
find  that  in  Connecticut  twenty-five  "  legal  voters  "  of  any 
town  may  cause  an  election  to  be  held  "  to  determine  whether 
any  person  shall  be  licensed  to  sell  spirituous  and  intoxicat- 
ing liquors  in  said  town  'V  The  law  having  been  adopted 
the  same  number  of  petitioners  may  later  demand  that  an- 

1  General  Statutes  of  Connecticut,  1888,  sec.  3050. 


372  THE  REFERENDUM  IN  AMERICA 

other  vote  be  taken  to  decide  whether  or  not  it  shall  be  re- 
scinded. In  Florida  "  one-fourth  of  the  registered  voters  " 
of  any  county  may  call  for  an  election  within  the  county  on 
the  subject  of  "prohibition";2  in  Georgia  one-tenth  of  the 
voters  "  who  are  qualified  to  vote  for  members  of  the  General 
Assembly  in  any  county  in  this  State  " ; 3  in  Minnesota  ten 
or  more  legal  voters  in  any  township ; 4  in  Mississippi,  one- 
third  of  the  qualified  voters  of  any  county ; 5  in  Missouri, 
one-tenth  of  the  qualified  voters  of  any  county ; 6  in  Mon- 
tana one-third  of  the  qualified  electors  in  the  counties ; 7  in 
North  Carolina  one-fourth  of  the  qualified  voters  of  any 
county,  town  or  township ; 8  in  Texas  250  voters  of  any 
county  or  fifty  voters  of  any  justice's  precinct,  city,  town 
or  other  subdivision  of  the  county ; 9  in  Virginia  one-fourth 
of  those  voting  at  the  preceding  regular  November  election 
in  any  county,  corporation  (city),  town  or  magisterial  dis- 
trict ; 10  in  Wisconsin  ten  per  cent  of  the  number  of  votes 
cast  for  governor  at  the  last  general  election  in  any  town, 
village  or  city.11  On  the  receipt  of  a  petition  signed  by 
twelve  qualified  voters  of  a  city,  village  or  town  in  Wiscon- 
sin the  officers  thereof  must  submit  the  question  as  to  the 
sum,  greater  or  less,  which  shall  be  paid  by  dealers  for 
liquor  licenses.12  Likewise  in  New  Jersey  a  vote  is  taken  to 
fix  the  license  fee  upon  the  filing  of  a  petition  which  has  been 
signed  by  at  least  one-fifth  of  the  legal  electors  of  any  town- 
ship, town,  borough  or  city  voting  at  the  last  previous  elec- 
tion for  Governor  of  the  State.13 

3  Revised  Statutes  of  Florida,  1892,  p.  329. 

8  Code  of  the  State  of  Georgia,  1895,  sees.  1541  et  seq. 

*  Statutes  of  Minnesota,   1894,  sec.  1990. 

5  Annotated  Code  of  Mississippi,  1892,  sees.  1609  et  seq. 

8  Revised  Statutes  of  Missouri,   1889,  p.   1050. 

7  Montana  Codes,  1895,  sees.  3180  et  seq. 

8  Code  of  North  Carolina,   1883,  sees.  3113  et  seq. 
•Supplement  to  Sayles'  Civil  Statutes,  1888-1893,  tit.  63,  art.  3227. 

10  Code  of  Virginia,   1887,  p.  200. 

11  Sanborn  and  Berryman's  Wisconsin  Statutes,  1898,  sec.   15653. 
"Ibid.,  sec.   i548b. 

18  General  Statutes  of  New  Jersey,  1896,  p.  1810. 


THE  INITIATIVE  373 

The  people's  right  of  initiative  in  respect  of  changes  in 
the  sites  of  county  capitals  also  claims  our  interest.  Thus 
in  Arkansas  one-third  of  the  legal  voters  of  a  county  sign- 
ing a  petition  to  that  effect  may  call  an  election  to  decide  the 
question  of  removing  the  county  seat.14  In  California  this 
referendum  in  any  county  requires  a  petition  signed  by 
voters  equal  in  number  to  a  majority  of  the  votes  cast  at 
the  last  preceding  general  election ; 15  in  Colorado  a  majority 
of  the  taxpayers ; 1C  in  Florida  one-third  of  the  registered 
voters ; 17  in  Georgia  two-fifths  of  the  "  poll-taxpayers  "  ; l8 
in  Illinois  two-fifths  of  the  legal  voters  of  the  county ; 19  in 
Indiana  forty  per  cent  of  the  whole  number  of  legal  voters 
of  any  county ; 20  in  Kansas  a  majority,  or  three-fifths,  or 
two-thirds  of  the  legal  voters,  according  to  the  value  of 
the  buildings  which  are  already  in  use  by  the  county  and 
which  it  is  proposed  shall  be  abandoned ; 21  in  Kentucky 
twenty-five  per  cent  of  the  votes  cast  at  the  last  general 
election  for  county  officers.22 

The  laws  permitting  the  people  of  counties  and  other 
local  districts  to  determine  whether  or  not  live  stock  shall 
be  allowed  to  run  at  large  are  also  brought  to  a  vote  through 
the  initiative.  In  Georgia  the  election  may  be  held  in  any 
county  when  fifty  freeholders  petition  for  it,  and  in  any 
militia  district  on  the  receipt  of  the  signatures  of  fifteen  free- 
holders.23 In  Iowa  on  the  same  subject  the  petition  must 
be  signed  by  one-fourth  of  the  legal  voters  of  a  county ; 24  in 
Kentucky  by  100  voters  in  any  county  or  twenty  voters  in 

14  Sandels  and  Hill's  Digest  of  the  Statutes  of  Arkansas,  pp.  393 
et  seq. 

10  Statutes  of  1893,  P-  346. 

18  Supplement  to  Mills'  Annotated  Statutes,  p.  307. 

17  Revised  Statutes  of  Florida,   1892,  p.  281. 

18  Cod e  of  the  State  of  Georgia,   1895,  sec.  391. 

19  Starr  and  Curtis'  Statutes  of  Illinois,  1896,  p.  1117. 
*°  Horner's  Indiana  Statutes,  1896,  sees.  4232  et  seq. 

21  Webb's  General  Statutes  of  Kansas,  1897,  chap.  26,  sees,  i  et  seq. 
"  Barbour  and  Carroll's  Kentucky  Statutes,  1894,  sees.  915  et  seq. 
M  Code  of  the  State  of  Georgia,  sec.  1777. 
**  Annotated  Code  of  Iowa,  1897,  sec.  444. 


374  THE  REFERENDUM  IN  AMERICA 

any  magisterial  district,  (a  subdivision  of  a  county)  ; 25  in 
Missouri  100  householders  in  any  county  or  twenty-five 
householders  in  a  township ; 26  in  North  Carolina  one-fifth 
of  the  qualified  voters  in  any  county,  township  or  "  dis- 
trict or  territory  whether  the  boundaries  of  said  district 
follow  township  lines  or  not  " ; 27  in  North  Dakota  one-third 
of  the  qualified  electors  of  a  county;28  in  Oregon  100  or 
more  legal  voters  of  a  county.29 

In  any  county  in  California  the  board  of  supervisors  may 
submit  the  question  of  establishing  a  county  high  school 
upon  receiving  a  petition  signed  by  "  fifty  or  more  qualified 
electors  and  taxpayers  of  said  county  ".30  The  same  number 
of  signers  may  require  a  poll  of  the  people  on  this  subject 
in  the  counties  of  Nevada.31  Fifty  voters  in  any  school 
township  in  Illinois  may  demand  an  election  on  the  question 
of  establishing  a  township  high  school.32  Two  hundred 
voters  in  any  county  of  Ohio  may  cause  a  referendum  to  be 
taken  on  the  question  of  levying  a  tax  to  found  a  "  children's 
home "  for  poor  orphans,  and  children  for  whose  support 
parents  are  unable  or  unwilling  to  provide.33  In  Utah  in 
cities  of  the  first  class  1,000,  in  cities  of  the  second  class  250 
and  in  cities  of  the  third  class  and  towns  fifty  "  qualified 
voters  and  property  taxpayers  ",  signing  a  petition  therefor 
may  require  that  a  referendum  be  taken  on  a  proposition  to 
assess  a  tax  for  a  free  public  library.34  Twenty-five  signa- 
tures suffice  to  secure  an  election  in  any  town  in  the  State 
of  New  York  on  a  proposal  to  pay  to  public  school  teachers 
a  regular  civil  pension  or  allowance  after  twenty-five  years 


25  Barbour  and   Carroll's  Kentucky  Statutes,  sec.  4646. 
m  Revised  Statutes  of  Missouri,   1889,  p.   186. 
"Code  of  North  Carolina,   1883,  sec.  2811. 

28  Revised  Codes  of  the  State  of  North  Dakota,  1895,  sees.  1550  et  seq. 

29  Laws  of  Oregon  of  1893,  p.  89. 

80  Statutes  of  1891,  p.  57. 

81  Statutes  of  Nevada,  1895,  p.  28. 

11  Starr  and  Curtis'  Annotated  Statutes,  p.  3660. 

88  Revised  Statutes  of  Ohio,  7th  ed.,   1896,  sec.  929. 

"Laws  of  1896,  p.  144- 


THE  INITIATIVE  375 

of  continuous  service.35  Fifty  taxpayers  in  any  county  in 
Nebraska  can  demand  an  election  on  the  question  of  paying 
bounties  for  the  destruction  of  wolves,  wild  cats,  coyotes 
and  mountain  lions.36  One  hundred  voters  in  any  county 
in  West  Virginia  can  compel  the  local  authorities  to  take  a 
poll  of  the  people  on  the  proposition  to  tax  dogs,  the  pro- 
ceeds of  the  levy  to  be  used  for  indemnifying  the  owners 
of  sheep  whose  flocks  have  been  attacked  and  injured  by 
dogs.37  In  the  cities  and  villages  of  Wisconsin  ten  per  cent  of 
the  "  duly  qualified  electors  "  may  initiate  and  cause  a  vote  to 
be  taken  on  a  local  by-law  to  regulate  the  sale  of  street  rail- 
way, water,  lighting  and  other  public  franchises.38  An  act  in- 
troducing new  rules  respecting  the  civil  service  in  cities  in 
Illinois  requires  a  petition  which  is  signed  by  1,000  voters.89 
County  courts  in  West  Virginia  on  the  receipt  of  a  petition 
containing  the  signatures  of  100  voters  must  submit  a  propo- 
sition for  "  an  alternative  method  of  constructing  and  keep- 
ing in  repair  the  county  roads  ".40 

Innumerable  instances  of  this  kind,  similar  in  principle 
if  varying  in  matters  of  detail,  might  be  cited  here,  though 
it  could  add  little  to  the  discussion  of  this  branch  of  our 
subject.  As  well  might  I  have  referred  to  a  thousand  other 
cases  as  to  these.  But  to  name  a  greater  number  of  examples 
would  be  as  tedious  as  it  would  be  devoid  of  useful  purpose, 
for  enough  has  certainly  been  said  to  indicate  how  widely 
and  generally  the  initiative  is  employed  in  this  country,  and 
how  necessary  a  feature  of  our  system  of  local  govern- 
ment it  has  everywhere  become,  especially  in  the  Western 
States.  Sometimes,  it  should  be  remarked,  the  initiation 
of  a  measure  which  the  legislature  has  proposed  to  the 
localities  is  not  left  solely  to  the  people,  but  the  law  pro- 
vides that  the  county  commissioners  or  other  local  repre- 

35  Revised  Statutes  of  New  York,  gth  ed.,  p.  3089. 
88  Compiled  Statutes  of  Nebraska,   1897,  P-  73- 

87  Code  of  West  Virginia,  3rd  ed.,   1891,  p.  600. 

88  Sanborn   and   Berryman's   Wisconsin  Statutes,  sec.   940J. 

89  Starr  and  Curtis'  Statutes,  p.   826. 

40  Code  of  West  Virginia,   3rd  ed.,  p.  332. 


3/6  THE  REFERENDUM  IN  AMERICA 

sentative  officials  "  may ",  or  upon  receipt  of  a  petition 
signed  by,  say  fifteen  per  cent  of  the  qualified  electors  of 
the  county,  "  must "  submit  the  question  to  popular  vote. 
When  this  provision  occurs  in  the  law  local  magistrates  may 
of  course  anticipate  a  petition,  acting  in  the  matter  on  their 
own  responsibility  without  authorization  from  any  other 
source. 

The  American  experience  with  this  institution  has  taught 
us  some  lessons  and  not  least  useful  among  them  is  one  which 
has  been  emphasized  in  Kansas,  Indiana,  Kentucky  and 
Arkansas,  though  the  same  tendency  is  manifested  in  other 
States.  The  initiative  has  sometimes  proven  itself  too  em- 
barrassingly democratic,  even  as  measured  by  the  standards 
of  our  very  liberal  political  system  of  which  it  has  now  be- 
come so  familiar  a  part.  When  important  questions  which 
closely  affect  the  public  welfare  are  to  be  determined  the 
legislature  has  found  it  advisable  to  hedge  in  upon  the  privi- 
lege. In  respect  of  subjects  upon  which  the  people  might 
ask  for  a  plebiscite  too  frequently  it  has  become  necessary 
to  apply  some  effective  restraints.  Just  as  with  the  referen- 
dum when  increased  majorities,  e.  g.,  a  three-fifths  or  a 
two-thirds  vote  is  demanded,  and  when  elections  on  the  same 
subject  oftener  than  once  in,  say,  two  or  five  years  are  pro- 
hibited, so  with  the  initiative  devices  are  employed  to  lessen 
its  democratic  influence  and  force.  If  there  is  reason  to 
think  that  the  people  will  make  too  free  a  use  of  the  right 
to  call  elections  on  local  propositions  the  number  of  signa- 
tures which  must  be  appended  to  the  petition  is  increased. 
If  there  is  no  such  prospect  the  number  is  always  smaller. 
In  not  a  few  cases  more  signatures  must  be  secured  for  the 
petition  than  the  number  of  votes  needed  subsequently  to 
pass  the  measure  in  the  referendum.  Thus  the  people  are 
effectively  held  in  check  since  it  is  no  easy  task,  especially  in  a 
large  and  populous  community,  to  secure  a  long  list  of 
signatures  unless  there  is  serious  purpose  behind  the  move- 
ment, and  a  general  desire  that  an  election  should  be  held. 

Kansas   furnishes   a   striking   instance   directly   in   point. 


THE  INITIATIVE  377 

The  people  of  this  country  seem  to  be  almost  wholly  lacking 
in  a  genius  for  quietly  and  properly  attending  to  the  small 
duty  of  choosing  locations  for  their  county  capitals.  In 
many  States  of  the  West  they  have  made  it  plain  that  they 
are  not  disposed  happily  to  submit  to  the  decree  of  any  repre- 
sentative body  respecting  the  choice  of  a  site  for  the  county 
buildings.  Bloody  riots  led  by  the  defenders  of  the  claims 
of  rival  towns  have  not  infrequently  occurred.  In  most 
States  the  constitutional  convention  or  the  legislature  now 
refers  the  whole  subject  to  the  people  of  the  respective 
counties,  authorizing  them  to  place  the  buildings  at  what- 
ever spot  may  seem  to  them,  in  their  wisdom,  to  be  best 
suited  for  such  a  purpose.  Nevertheless  unfortunate  dif- 
ferences still  arise  from  time  to  time  and  wherever  too  great 
freedom  is  allowed  to  the  people  in  this  matter  there  are 
likely  to  be  unpleasant  if  not  serious  consequences.  The 
problem  is  simply  this,  to  find  some  method  by  which  any 
group  of  speculators  in  land  whose  pecuniary  interests 
centre  about  a  certain  town  can  be  prevented  from  subor- 
dinating the  public  welfare  to  their  private  ends.  In  nearly 
all  the  States  the  number  of  signatures  which  must  be  as- 
sembled on  a  petition  for  a  county-seat  election  is  relatively 
high  and  the  referendum  can  be  taken  not  oftener  than  once 
in  a  rather  long  period  of  years.  The  method  employed  in 
Kansas  is  novel  and  ingenious.  A  simple  majority  of  the 
legal  electors  of  a  county  signing  a  petition  for  the  removal 
of  the  county  seat  can  demand  an  election  on  the  subject 
when  the  buildings  on  the  present  site  have  cost  the  county 
less  than  $1,000.  If,  however,  they  shall  have  cost  $2,000 
or  more  a  petition  signed  by  three-fifths  of  the  electors  is 
requisite,  and  if  more  than  $10,000,  and  if  they  have  been 
in  one  place  continuously  for  at  least  eight  years  the  names 
of  two-thirds  of  the  qualified  voters  in  the  county  must  be 
secured.  In  the  latter  case,  furthermore,  the  proposition 
when  it  is  submitted  to  the  people  in  the  referendum  must 
be  approved  by  not  less  than  a  three-fifths  vote.41  In 

41  Webb's  General  Statutes  of  Kansas,  chap.  26,  sees,  i  et  seq. 


37 8  THE  REFERENDUM  IN  AMERICA 

Georgia  a  petition  for  a  poll  of  the  people  on  the  question  of 
removing  a  county  seat  must  be  signed  by  two-fifths  of  the 
"  poll-taxpayers  "  and  in  the  referendum  which  follows  a 
two- thirds  majority  vote  is  required.  Moreover  the  elec- 
tion cannot  be  held  more  frequently  than  once  in  five  years.42 
None  of  these  restraints  seems  to  be  quite  so  rigorous, 
however,  nor  does  any  manifest  so  much  psychological 
knowledge  of  men  as  the  system  by  which  the  signers  of  a 
petition  for  an  election  are  made  to  deposit  from  their  own 
private  purses  a  sum  of  money  to  reimburse  the  county  for 
any  loss  which  may  thereby  be  entailed.  As  a  means  of  put- 
ting a  brake  on  popular  ignorance  and  precipitancy  this  is 
a  rather  new  development  in  a  democracy.  It  finds  its  close 
counterpart  in  South  Carolina  where  after  struggling  for  a 
long  time  with  the  lynching  evil  and  finding  our  system  of 
government  barren  of  remedies,  we  have  turned  upon  the 
people  whom  we  have  not  been  able  to  check  through  the 
church,  the  school  or  the  courts  and  have  told  them  that  if 
they  cannot  wait  for  the  established  judicial  agencies  to  take 
their  natural  course  with  a  prisoner  or  suspect  they  shall  be 
held  financially  responsible  for  the  results  of  their  venge- 
ful folly.  The  convention  which  framed  the  Constitution 
of  South  Carolina  of  1895  puts  the  pecuniary  burden  of  a 
lynching  upon  the  taxpayers  of  the  county  in  which  it  oc- 
curs. The  Constitution  provides  that  "  in  all  cases  of  lynch- 
ing when  death  ensues  the  county  where  such  lynching  takes 
place  shall  ....  be  liable  in  exemplary  damages  of  not  less 
than  $2,000  to  the  legal  representatives  of  the  person 
lynched  ".  As  the  counties  in  which  such  savage  outbreaks 
occur  are  usually  not  wealthy  the  hope  is  entertained  that 
the  taxpayers  who  may  compose  the  mob  will  hereafter  re- 
flect a  little  before  assisting  to  break  open  the  jail  door  or 
throw  the  rope  over  the  tree-limb  at  a  Carolina  "  lynching 
party  ",  and  that  taxpayers  who  are  not  members  of  the 
mob  will  use  their  utmost  endeavors  to  dissuade  their  neigh- 

42  Code  of  Georgia,  1895,  sees.  377  et  seq. 


THE  INITIATIVE  379 

bors  from  taking  a  step  which  may  prove  to  be  pecuniarily 
so  expensive  to  them  all.  If  such  a  law  would  seem  to  give 
an  exaggerated  importance  to  the  material  motives  in  men 
it  will  be  well  to  remember,  perhaps,  that  the  true  test  is 
found  in  results.  The  need  is  for  restraint  of  popular  im- 
pulse and  passion  while  holding  fast  to  democratic  forms, 
and  to  attain  this  end  taxation,  if  as  potent,  may  be  quite  as 
defensible  as  any  other  method. 

So  likewise  when  it  is  necessary  to  hold  the  people  at  bay 
in  the  initiation  of  legislation,  while  still  allowing  them  to 
retain  and  exercise  this  right,  they  are  sometimes  made 
financially  liable  for  their  indiscreet  deeds.  In  Arkansas, 
when  in  1893  it  appeared  to  be  expedient  to  modify  the  rule 
of  1873  by  which  one-third  of  the  qualified  voters  of  any 
county  might  order  an  election  on  the  question  of  remov- 
ing the  county  seat,  pecuniary  checks  were  introduced.  In 
1893  it  was  enacted  that  in  any  county  in  Arkansas  having 
a  court  house  which  "  originally  cost  $10,000  or  more  or  a 
court  house  and  jail  which  together  originally  cost  $10,000 
or  more  "  the  petitioners  for  a  removal  of  the  county  seat 
should  deposit  with  the  treasurer  of  the  county  "  $5,000  in 
United  States  currency  ".  This  sum  was  to  be  used  by  the 
county  "  in  erecting  a  new  court  house  ",  if  the  people  at 
the  election  should  vote  in  favor  of  a  change  of  site.  If, 
however,  the  vote  were  against  the  proposed  change  the  sum 
which  had  been  deposited  by  the  signers  of  the  petition  must 
be  made  good  to  them  again.  Moreover  as  a  further  dis- 
couragement to  frequent  elections  on  this  subject  it  is  pro- 
vided in  Arkansas  that  when  a  county  seat  has  once  been 
removed  in  compliance  with  the  act  its  location  shall  not  be 
changed  a  second  time  until  after  the  expiration  of  ten 
years.43 

In  Indiana  also  some  very  severe  restrictions  hedge  about 
the  initiative  and  the  referendum  in  respect  of  the  relocation 
of  county  seats.  By  a  law  of  1885  no  capital  is  to  be  removed 

*8Sandels  and  Hill's  Digest  of  the  Statutes  of  Arkansas,  1894,  p.  39<5 


3  So  THE  REFERENDUM  IN  AMERICA 

and  relocated  until  it  has  been  in  its  present  site  for  at  least 
twenty-five  years.  When  the  appraised  value  of  the  county 
buildings  exceeds  $20,000  a  change  of  site  is  altogether  pro- 
hibited. In  permissible  cases  forty  per  cent  of  the  whole 
number  of  legal  voters  of  any  county  signing  a  petition 
therefor  may  demand  a  referendum  on  this  subject  if  they 
first  deposit  with  the  county  commissioners  a  deed  for  at 
least  two  acres  of  ground  as  a  site  for  the  new  buildings, 
with  legal  evidence  of  the  validity  of  the  title  to  the  land, 
an  affidavit  that  the  signatures  to  the  petition  are  genuine, 
the  sum  of  $200  to  pay  for  architect's  plans  and  a  bond  made 
payable  to  the  State  of  Indiana  to  cover  the  expenses  of  the 
election.  Moreover  in  the  referendum  which  follows  no  less 
than  seventy  per  cent  of  the  votes  cast  must  be  in  favor 
of  the  change  of  site  in  order  to  make  it  valid,  a  series  of 
difficult  conditions  which  perhaps  could  but  rarely  be  ful- 
filled.44 

Similarly  in  Kentucky  by  the  "  local  option  "  law  of  1894 
a  number  of  signers  equal  to  twenty-five  per  cent  of  the 
votes  cast  at  the  last  election  may  ask  for  a  poll  of  the  peo- 
ple on  the  question  of  prohibiting  the  liquor  trade  in  counties, 
cities,  towns  and  other  local  districts  of  the  State.  But  it  is 
provided  that  the  county  court  shall  not  issue  an  order  au- 
thorizing the  taking  of  the  vote  "  until  the  persons  signing 
the  petition  have  deposited  with  the  county  judge  in  money 
an  amount  sufficient  to  pay  for  printing  or  posting 
advertisements  as  provided  for  [in  the  law]  and  the  fees 
of  the  clerk  making  entries  in  the  order  book  ".  And  in 
no  case  may  the  election  on  this  subject  be  held  oftener  than 
once  in  three  years.45  In  local  elections  for  the  restraint 
of  domestic  animals  the  Kentucky  legislature  also  requires 
a  deposit  of  money.  The  law  declares  that  "  no  polls  shall 
be  opened  unless  the  petitioners  shall  deposit  with  the 
county  court  at  the  time  the  petition  is  filed  an  amount 

44  Homer's  Indiana  Statutes,  sees.  4232  et  seq.;  cf.  ibid.,  sees.  4235b 
et  seq. 

*5  Barbour  and  Carroll's  Kentucky  Statutes,  sec.  2559. 


THE  INITIATIVE  3Sl 

sufficient  in  the  judgment  of  the  court  to  defray  the  ex- 
penses of  the  election  upon  this  question  ",46 

The  initiative  has  a  place  in  our  local  political  practice 
in  still  another  form.  It  occurs  with  the  referendum  in  the 
cases  which  we  have  just  noted;  sometimes  too  it  occurs 
alone.  In  many  instances  the  contingency  which  attends 
the  taking  effect  of  a  law  in  respect  of  localities  is  merely 
a  petition  containing  the  signatures  of  a  majority,  or  other 
prescribed  number  of  citizens.  This  is  a  very  old  form  of  the 
initiative  in  America.  It  was  a  method  of  taking  the  popular 
sense  before  the  referendum  had  yet  appeared  on  the  scene 
and  it  can  well  be  asked  why  when  the  law  requires  a  peti- 
tion which  is  signed  by  at  least  a  majority  of  the  citizens, 
the  same  number  that  usually  suffices  to  adopt  a  measure  in 
the  referendum,  it  should  also  be  adjudged  necessary  to  poll 
the  people  on  the  subject?  There  is  probably  no  answer  to 
this  question  except  this — that  our  system  has  been  found 
to  be  too  democratic  and  while  not  desiring  to  abolish  it 
entirely  we  have  had  to  introduce  devices  to  make  its  opera- 
tion less  easy  and  smooth.  It  is  much  harder  to  get  the 
signatures  of  a  majority  of  the  citizens  of  any  but  the 
smallest  communities  than  it  is  to  secure  the  votes  of  the 
same  number  of  men  at  a  public  election.  Again  it  is  much 
harder  to  get  the  names  of  two-thirds  of  the  voters  than 
of  a  simple  majority  and  to  couple  the  petition  with  the 
referendum  and  say  that  one  must  follow  the  other,  adding, 
perhaps,  that  the  petitioners  shall  advance  enough  money  to 
pay  the  cost  of  taking  the  vote  before  the  election  will  be 
advertised,  is  to  put  a  most  effective  check  upon  "  gov- 
ernment by  the  people  ".  So  much  has  been  said  in  recent 
years  in  regard  to  the  desirability  of  making  direct  legis- 
lation by  the  citizens  easy  since  they,  being  the  theoretical 
source  of  government,  can  do  us  no  wrong  that  such  a  mani- 
festation is  of  peculiar  interest.  It  is  an  instance  perhaps  in 
which  the  people  have  locked  their  own  wheels. 

46  Kentucky  Statutes,  sed.  4647  ;  cf.  Sandels  and  Hill's  Arkansas  Stat- 
utes, sec.  7277,  and  Compiled  Statutes  of  Nebraska,  1897,  pp.  1591-92. 


382  THE  REFERENDUM  IN  AMERICA 

Initiation  by  a  small  percentage  of  the  voters — a  number 
less  than  a  majority — is  a  natural  accompaniment  of  the 
referendum  in  local  matters.  It  serves  to  render  the  system 
self-operating,  and  to  a  degree  automatic,  in  that  the  peti- 
tion determines  when  the  referendum  which  the  legislature 
has  authorized  shall  be  taken.  It  is  a  mere  formal  proceeding 
saying  nothing  for  or  against  the  adoption  of  the  law.  The 
law  is  accepted  or  rejected  by  the  people  later  on,  they  being 
the  law-makers  when  they  vote  upon  it  in  the  referendum.  In 
the  case  of  the  petition  which  is  not  followed  by  a  poll  of  the 
citizens  it  is,  as  it  were,  the  initiative  and  the  referendum 
combined  in  one.  The  people  are  still  the  law-makers,  but 
they  sanction  the  law  simply  by  signing  their  names  on  a 
sheet  of  paper  instead  of  by  depositing  their  ballots  at  a  poll- 
ing station.  Thus  in  any  county  in  Arkansas  a  majority  of 
the  taxpayers  signing  a  petition  may  require  the  county  court 
to  purchase  a  farm  and  erect  upon  it  a  house  of  correction 
for  misdemeanants  convicted  of  petit  crimes.47  In  Arkansas, 
school  lands,  i.  e.,  the  sixteenth  section  of  any  "  congressional 
township  ",  may  be  sold  on  authority  derived  from  a  written 
petition  which  is  signed  "  by  a  majority  of  the  male  inhab- 
itants of  such  township  ".48  In  counties  and  subdivisions  of 
counties  in  Arkansas  on  receipt  of  a  petition  requesting  that 
this  be  done,  signed  by  a  majority  of  the  qualified  electors, 
the  county  must  grant  an  order  obliging  owners  to  enclose 
their  live  stock.  The  order  may  be  rescinded  again  by  the 
same  process.49  In  Illinois  a  petition  containing  the  signa- 
tures of  two-thirds  of  the  legal  voters  of  a  township  will 
validate  the  sale  of  school  lands  without  a  poll  by  ballot.  The 
names  must  be  affixed  in  the  presence  of  two  adult  citizens 
of  the  township  both  of  whom,  witnessing  the  document,  must 
make  affidavit  as  to  the  genuineness  of  the  signatures.50  In 
Kansas  a  petition  signed  by  two- thirds  of  the  legal  voters  of 
any  county  makes  effective  within  the  county  a  legislative 

47  Digest  of  Arkansas   Statutes,  p.   382. 

48  Ibid.,  sec.   7114.        49  Ibid.,  sees.  7274  et  seq. 

*°  Starr  and  Curtis'  Annotated  Statutes,  p.  3719. 


THE  INITIATIVE  383 

provision  in  regard  to  the  enclosure  of  domestic  animals.51 
By  a  law  of  1896  two-thirds  of  the  qualified  voters  of  Vicks- 
burg,  Miss.,  signing  a  petition  therefor  could  require  that 
bonds  be  issued  on  the  credit  of  the  city  to  an  amount  not 
exceeding  $25,000  to  defray  the  expense  of  erecting  buildings 
for  the  Medical  Department  of  the  University  of  Missis- 
sippi.52 In  Nevada  a  majority  of  the  taxpayers,  or  tax- 
payers representing  a  majority  of  the  taxable  property  in 
cities,  unincorporated  towns  and  school  districts  may  join  in 
petitioning  for  a  tax  to  raise  money  to  establish  and  main- 
tain free  public  libraries.53  Instances  of  this  kind  in  the 
various  States  are  by  no  means  rare,  the  sense  of  the  people 
in  regard  to  propositions  and  local  ordinances  being  taken 
usually,  however,  by  ballot  at  the  polling  places,  a  much  more 
convenient  method  of  securing  an  expression  of  public  opin- 
ion. 

There^are  then,  as  we  have  seen,  three  courses  open  to  the 
State  legislature  when  it  desires  to  legislate  for  a  locality, 
and  it  cannot,  or  is  itself  unwilling  to  pass  a  definitive  law. 
( i )  It  may  make  the  going  into  effect  of  the  law  depend  upon 
the  will  of  local  representative  officials.  (2)  It  may  require 
a  polling  of  the  people  of  the  district  to  be  affected  by  the 
act,  the  latter  coming  into  force  or  not,  according  as  the 
vote  is  in  favor  of  or  against  the  measure.  The  legislature 
(a)  may  itself  fix  a  certain  date  when  the  referendum  shall 
be  taken ;  or  (b)  it  may  require  the  election  to  be  held  on  the 
initiation  of  a  certain  number  of  the  citizens  of  the  district 
concerned  who  shall  petition  for  the  vote;  or  (c)  it  may  re- 
sign to  local  officers  the  duty  of  determining  when  the 
people  shall  be  polled  respecting  any  given  subject.  (3) 
And  finally  the  legislature  may  specify  that  the  conditional 
act  which  it  passes  shall  go  into  effect  in  a  local  district  when 
a  majority  of  the  legal  electors  residing  therein  have  signed 
a  paper  and  petitioned  for  the  enforcement  of  the  law. 

r>1  Webb's  General  Statutes  of  Kansas,  chap.  138,  sees.  6  et  seq. 

52  Laws  of   1896,  chap.   118. 

53  Statutes  of  Nevada  of  1895,  P-  79- 

r         B 


THE  REFERENDUM  IN  AMERICA 

These  three  forms  often  exist  side  by  side  in  the  same 
State.  They  are  not  inconsistent.  To  determine  which  shall 
be  employed  in  any  given  case  is  a  question  of  expediency  and 
of  the  existing  custom  in  the  matter, — often  too  it  would 
seem  of  pure  chance.  In  respect  of  many  classes  of  subjects 
local  representative  officials  decide  when  the  law  shall  be- 
come operative  within  the  locality;  respecting  many  others, 
as  wre  have  noted  on  earlier  pages,  the  referendum  with  or 
wrihout  the  initiative  is  employed,  and  in  not  a  few  cases  the 
presentation  of  a  petition  signed  by  a  majority  of  the  citi- 
zens without  a  vote  by  ballot  is  the  condition  which  the  legis- 
lature attaches  to  a  law's  going  into  effect. 

But  it  will  be  said  of  course  that  a  petition  of  this  kind  is 
not  the  initiative  of  the  true  Swiss  type.  The  petition  is  not 
the  initiative  in  the  form  that  the  advocates  of  this  feature  of 
popular  government  desire  to  see  it  introduced  into  this  coun- 
try. The  right  of  initiation  includes  the  right  to  demand  a 
vote  of  the  people,  not  only  on  laws  already  proposed  or 
passed  by  the  representative  legislature,  but  also  on  new 
measures.  The  right  of  initiation  is  the  right  to  initiate  the 
law  as  well  as  the  election  for  and  against  the  law.  It  is 
a  democratic  agency  by  which  a  minority  party  and  elements 
which  are  without  representation  in  the  legislature  may  force 
the  latter's  hand  and  compel  ilt©-submit  any  desired  measure 
to  popular  vote.  The  ii*tiative*rs  a  lever  by  which  the  people 
may  exert  power  upoi\  their  tf  governors  "  even  if  these  be 
no  othei\  persons  than  these  whom  the  people  at  intervals 
themjelyes  elecivSuch  is  the  purpose  of  the  reform  as  it 
comes  rlcommefijaed  to  us  by  the  democratic-socialist  leaders 
of  whom  we  now  have  so  many  in  the  United  States.  Very 
well.  We  have  the  initiative  in  this  form  in  America  also; 
in  some  States  it  is  true  only  as  a  result  of  considerable  agi- 
tation of  the  subject  on  the  part  of  these  outspoken  advocates 
of  "  direct  legislation  "  as  in  South  Dakota,  Nebraska  and 
San  Francisco,  but  also  as  a  natural  development  of  our  town 
meeting  principle  as  in  Iowa  and  California.54 

64  Ante,  pp.  307  et  seq. 


THE  INITIATIVE  38S 

By  an  amendment  to  the  Constitution  which  was  adopted 
by  the  people  in  1898  55  both  the  initiative  and  the  referen- 
dum, closely  patterned  after  the  Swiss  forms  were  introduced 
into  the  political  practice  of  South  Dakota.  The  system  was 
further  worked  out  and  developed  by  an  act  passed  by  the 
South  Dakota  legislature  in  i899.66  In  that  State  the  people 
may  demand  that  a  vote  be  taken  on  all  laws  which  have  been 
approved  by  the  legislature  except  those  of  immediate 
urgency.  If  a  number  of  electors  equal  to  five  per  cent  of 
the  votes  cast  for  Governor  at  the  last  preceding  general 
election  file  a  petition  with  the  secretary  of  state  within  ninety 
days  after  the  adjournment  of  the  legislature,  asking  that 
any  law  which  it  may  have  passed  during  that  session  shall 
be  submitted  to  the  people  of  the  State,  a  referendum  must 
be  taken  on  the  question  of  the  adoption  or  rejection  of  the 
measure.  Not  only  this  but  five  per  cent  of  the  electors  of  the 
State  may  propose  any  measure  that  they  may  deem  to  be  for 
the  public  welfare  and  the  legislature  receiving  the  petition 
must  submit  it  to  popular  vote.  In  either  case  the  petition, 
whether  for  a  vote  on  a  new  law  which  the  people  have  pro- 
posed, or  on  a  law  already  passed  by  the  legislature,  must  be 
signed  by  the  citizens  in  person  and  in  addition  to  the  name 
must  give  the  place  of  residence,  the  occupation  and  the  post 
office  address  of  each  individual  signer  of  the  paper.  The 
petition,  too,  must  contain  the  substance  of  the  law  upon 
which  it  is  desired  that  the  referendum  shall  be  taken.  A 
majority  of  all  the  votes  cast  both  for  and  against  the  measure 
is  decisive,  and  if  the  law  is  approved  in  the  referendum  it 
goes  into  effect  at  once.57  In  the  same  way  in  South  Dakota 
by-laws  and  ordinances  passed  by  the  local  legislative  bodies 
for  the  government  of  their  respective  towns  and  cities,  ex- 
cept "  emergency  measures  ",  are  submitted  to  a  vote  of  the 
people  in  the  municipalities  to  be  affected  by  them.  Qualified 
electors  of  the  municipality  equal  to  five  per  cent  of  the 
votes  cast  for  the  "  highest  executive  officer  "  of  the  city  or 

65  Session  Laws  of  South  Dakota,   1897,  p.  88. 

58  Session  Laws  of  1899,  pp.  121  et  seq.         w  Ibid. 


3^6  ,  THE  REFERENDUM  IN  AMERICA 

town  at  the  last  general  election  may  propose  an  ordinance 
and  have  it  voted  on  by  the  people,  as  they  may  also  demand 
within  a  certain  period  after  its  passage  a  poll  of  the  people 
on  any  by-law  already  enacted  by  the  local  representative 
assembly.  A  majority  of  the  votes  cast  will  approve  the 
measure,  the  rules  respecting  the  filing  of  the  petition  and  the 
taking  of  the  vote  being  in  all  essential  respects  similar  to 
those  which  prevail  when  the  initiative  and  the  referendum 
apply  to  the  State  at  large.58 

By  the  new  charter  of  the  city  of  San  Francisco  a  num- 
ber of  electors  equal  to  fifteen  per  cent  of  the  votes  cast  at 
the  last  preceding  election  may  propose  local  ordinances  and 
demand  a  poll  of  the  people  upon  them.  Any  such  ordinance 
must  be  set  forth  and  described  in  the  petition  and  if  it  is 
approved  by  a  majority  of  those  who  attend  at  the  polling 
booths  and  vote  on  the  proposition  it  at  once  becomes  a  law 
of  the  city.  It  is  specifically  required  that  "  the  signatures 
to  the  petition  need  not  all  be  appended  to  one  paper  ",  and 
each  signer  in  writing  his  name  must  add  his  place  of  resi- 
dence "  giving  the  street  and  number  ",  so  that  he  may  be 
identified.  It  is  specially  provided  also  that  the  local  repre- 
sentative legislature  shall  not  repeal  or  amend  measures 
which  the  people  thus  adopt,  but  it  may  on  its  own  initiation 
submit  to  popular  vote  propositions  for  the  rescission  or 
amendment  of  such  laws.59 

Coming  to  Nebraska,  the  law  which  was  passed  by  the 
legislature  of  that  State  in  1897  introduces  the  initiative  and 
the  referendum  by  those  names,  and  in  the  Swiss  form,  for 
cities  and  "  other  municipal  subdivisions  of  the  State  ",  a  des- 
ignation which  we  are  told  includes  counties,  villages,  towns 
and  school  districts.  In  these  local  districts  fifteen  per  cent 
of  the  voters  may  demand  a  vote  on  any  proposed  ordinance 
at  a  general  election ;  twenty  per  cent  may  have  the  subject 
submitted  at  a  special  election.  If  the  local  representative 
legislature  alters  or  amends  the  initiated  measure,  after  it  is 

58  Session  Laws  of  South  Dakota,   1899,  pp.   121  et  seq. 
68  Charter  of  San  Francisco,  art.  ii,  chap,   i,  sec.  20. 


THE  INITIATIVE  387 

received  and  before  it  is  submitted  to  popular  vote,  the  orig- 
inal ordinance  and  the  amended  bill  shall  together  be  referred 
to  the  people,  so  that  they  may  make  their  choice  or,  if  it  be 
their  will,  reject  both  propositions.  In  the  same  manner  a 
referendum  may  be  demanded  on  any  by-law  proposed  and 
passed  by  the  local  legislative  boards, — at  a  regular  election- 
by  a  petition  signed  by  fifteen  per  cent  of  the  voters  of  the 
city,  county,  etc.,  and  at  a  special  election  by  a  petition  con- 
taining the  signatures  of  twenty  per  cent,  of  the  voters. 
"  Urgent  ordinances  "  are  excepted  from  the  provisions  of 
the  act  and  may  be  passed  definitively  to  go  into  effect  at 
once.60 

Of  a  purely  American  development,  the  outgrowth  of  na- 
tive conditions  existing  before  the  wave  of  Swiss  influence 
swept  over  the  country,  is  the  initiative  as  we  find  it  in  Cali- 
fornia and  Iowa.  A  law  of  California  contains  the  following 
interesting  provision :  "  Whenever  there  shall  be  presented  to 
the  board  of  supervisors  a  petition  or  petitions  signed  by  legal 
voters  of  said  county  equal  in  number  to  fifty  per  cent  of 
the  votes  cast  at  the  last  preceding  general  election,  asking 
that  an  ordinance  to  be  set  forth  in  such  petition  be  submitted 
to  a  vote  of  the  qualified  voters  of  such  county  it  shall  be  the 
duty  of  the  board  of  supervisors  by  due  proclamation  to 
submit  such  proposed  ordinance  to  the  vote  of  the  qualified 
voters  of  such  county.  The  election  shall  be  conducted  and 
the  returns  canvassed  in  all  respects  as  provided  by  law  for 
the  conducting  of  general  elections  and  canvassing  the  re- 
turns thereof.  If  a  majority  of  the  votes  cast  upon  such 
ordinance  shall  be  in  favor  of  the  adoption  thereof  the  board 
of  supervisors  shall  proclaim  such  fact  and  thereupon  such 
ordinance  thus  adopted  shall  have  the  same  and  equal  force 
and  effect  as  though  adopted  and  ordained  by  the  board  of 
supervisors."  61 

This  "  board  of  supervisors  "  is  a  body  composed  of  five 
members  who  are  elected  by  the  people  of  each  county  by  the 

80  Compiled  Statutes  of  Nebraska,   1897,  pp.  588  et  seq. 

61  Statutes  and  Amendments  to  the  Code  of  California,  1893,  p.  348. 


388  THE  REFERENDUM  IN  AMERICA 

system,  to  borrow  the  French  term,  of  scrutin  d' arrondisse- 
ment  and  not  scrutin  de  lisle,  the  latter  being  the  method 
usually  employed  in  making  choice  of  county  government 
boards  in  the  American  States.  The  supervisors  hold  office 
for  four  years  and  to  them  are  committed  very  extensive 
'legislative  and  administrative  powers  with  respect  to  local 
matters  of  various  kinds. 

Likewise  in  the  State  of  Iowa  the  board  of  supervisors 
may  submit  to  the  people  of  any  county  at  a  regular  election, 
or  a  special  election  to  be  called  for  that  purpose,  "  the  ques- 
tion whether  money  may  be  borrowed  to  aid  in  the  erection 
of  any  public  buildings  and  the  question  of  any  other  local  or 
police  regulation  not  inconsistent  with  the  laws  ofrthe  State  ". 
Propositions  for  the  repeal  of  local  regulations  may  be  re- 
ferred to  the  people  by  the  board  of  supervisors  in  the  same 
manner.  Furthermore  the  board  "  shall  ",  i.  e.,  it  must  sub- 
mit "  the  question  of  the  adoption  or  rescission  of  such  a 
measure  when  petitioned  therefor  by  one-fourth  of  the  voters 
of  the  county  ".  Whether  the  vote  is  taken  on  the  motion  of 
the  board  or  of  the  people  themselves  "  on  being  satisfied  that 
a  majority  of  votes  were  cast  in  favor  of  the  proposition  "  the 
supervisors  "  shall  cause  the  same  and  the  result  of  the  vote 
to  be  entered  at  large  in  the  minute  book  and  the  proposition 
shall  take  effect  and  be  in  force  thereafter  ",62 

Summarizing  these  results  for  the  initiative  we  find,  there- 
fore, that  one  State,  South  Dakota,  grants  the  people  the  right 
of  initiative  on  the  large  matter  of  State  laws.  The  petition 
must  be  signed  by  a  number  of  electors  equal  to  five  per 
centum  of  the  votes  cast  for  Governor  at  the  last  preceding 
general  election,  while  with  respect  to  the  initiative  in  local 
districts  on  local  by-laws  and  ordinances  the  showing  is  as 
follows:63 

82  Annotated  Code  of  the  State  of  Iowa,  1897,  sees.  443  et  seq. 

83  It  must  be  noted  always  of  course  that  the  initiative  and  the  ref- 
erendum   on    municipal    laws    in    South    Dakota,    Nebraska,    California, 
Iowa  and  San  Francisco  apply  to  local  laws  locally  enacted,  not  to  local 
laws  received  from   the   State  legislature   such   as  we   have  been   con- 
sidering in  the  earlier  part  of  this  chapter.    Cf.  ante,  p.  307. 


THE  INITIATIVE 


389 


South  Dakota. 


Nebraska 


California . 


Unit. 
Cities  and  towns, 

.Cities,  counties, 
towns,  villages, 
school  districts, 
etc. 

.  Counties. 


Iowa Counties. 


San  Francisco.. .City. 


Number  of  petitioners  necessary   to 
initiate. 

Five  per  cent  of  the  votes  cast  at 

the  last  election. 
Fifteen  per  cent  of  the  voters  for 

a  general  election  ;  20  per  cent 

if  the  submission  is  to  be  made 

at  a  special  election. 
Fifty  per  cent  of  the  votes  cast 

at  the  last  election. 
One  fourth  of  the  votes  cast  at  the 

last  election. 
Fifteen  per  cent  of  the  votes  cast 

at  the  last  election. 


The  fact  must  be  kept  in  mind  therefore  that  if  the  refer- 
endum is  not  unknown  to  our  political  system  in  the  United 
States,  so  likewise  is  the  initiative  no  stranger  among  our 
institutions.  Both  have  been  developing  side  by  side  until 
they  have  become  familiar  to  us  by  general  usage  in  all  but 
every  State  in  the  great  American  Republic. 


CHAPTER  XVI 

THE  REFERENDUM  VS.  THE  REPRESENTATIVE  SYSTEM 

IT  will  now  be  desirable,  I  think,  to  summarize  and  review 
in  a  final  chapter  the  results  of  our  studies  and  investigations. 
It  would  not  be  safe,  perhaps,  to  make  any  prophecies  re- 
garding the  future  of  the  initiative  and  the  referendum  in 
the  United  States.  The  philosophical  movement  led  by  J.  J. 
Rousseau,  which  had  for  its  natural  consequence  the  up- 
heavals in  the  latter  part  of  the  eighteenth  century,  was  a 
/nere  vague  and  fanciful  appeal  for  a  new  political  order,  in 
/which  the  people  would  receive  back  their  own  from  unau- 
thorized agents  who  had  got  into  control  of  the  machinery 
of  government  and  maintained  themselves  there  through  the 
complexity  of  the  political  organization.  It  was  a  protest 
aimed  against  monarchical  forms,  as  they  were  these  forms 
that  then  prevailed  nearly  everywhere.  Although  primary 
assemblies  were  spoken  of  as  the  ideals  in  government  it  was 
not  supposed,  even  by  Rousseau  himself,  that  Paris  or  France 
could  be  ruled  by  a  town  meeting,  and  a  ballot  system  of  the 
modern  type  had  not  yet  been  devised.  The  people  were 
_\ still  to  act  through  representatives,  albeit  as  a  necessary  evil 
from  which  it  was  thought  there  could  be  no  escape,  at  any 
in  populous  countries  of  a  large  territorial  area.  The 
result  was  a  demand  for  a  representative  system  with  the 
elimination  of  kings,  governors  and  indeed  all  magistrates 
who  were  not  directly  elected  by  the  people  and  were  not 
directly  responsible  to  them.  The  struggle  which  followed 
was -between  those  who  wished  to  organize  this  representa- 
tive system  after  two  different  plans.  The  radical  wing 
declared  its  preferences  for  a  government  by  an  unchecked 
convention  of  a  single  house  which  was  to  be  legislature,  ex- 

390 


REFERENDUM  VS.  REPRESENTATIVE  SYSTEM  39* 

ecutive  and  judiciary  combined  in  one.  The  other  wing,  led 
so  ably  in  this  country  by  John  Adams,  aimed  to  give  the  new  v 
government  a  more  complex  form  so  that  it  might  withstand 
the  first  gust  and  effectually  perform  the  great  tasks  set  for  it 
to  do  while  at  the  same  time  owing  the  necessary  responsi- 
bility to  the  people.  That  this  contest  was  a  bitter  and  pro- 
longed one,  I  think  I  have  shown  in  this  essay,  in  some  early 
chapters  from  the  constitutional  history  of  Pennsylvania 
where  the  struggle  centred  on  this  continent.  England,  un- 
moved by  the  storms  which  have  shaken  France,  has  gone 
forward  by  a  gradual  process  developing  a  type  of  govern- 
ment that  is  greatly  admired  in  all  parts  of  the  world.  Our 
own  government,  especially  as  a  Federal  model,  has  attracted 
much  attention  and  in  one  form  or  another  the  representative  < 
system  with  the  main  features  of  a  congress  or  parliament 
elected  by  the  people,  and  a  president  or  king  with  a  cabinet 
which  is  usually  responsible  to  the  parliament,  has  spread  over 
the  civilized  earth  being  incorporated  in  all  the  leading  consti- 
tutions of  Europe,  America,  Africa,  Australasia  and  even  iniU 
Japan. 

Although  parliamentary  government  has  been  so  widely 
introduced  and  has  now  so  generally  come  to  supersede  other 
forms  of  government  in  which  the  people  are  not  directly 
represented  in  a  legislature,  the  system  is  not  without  its 
weaknesses.  These  have  manifested  themselves  in  a  greaFl 
variety  of  ways.  They  have  pressed  themselves  on  the  atten-  j 
tion  of  thinking  men  throughout  a  long  period  of  years  in 
many  different  lands,  and  it  is  natural  that  some  corrective 
should  be  eagerly  sought.  It  is  very  generally  understood 
that  any  system  in  which  the  people  are  not  represented  in  a 
parliament,  and  by  which  they  must  take  and  obey  such  laws 
as  others  make  for  them,  is  quite  distasteful  to  most  modern 
populations.  If  such  tractable  peoples  can  be  found  and 
they  are  willing  peaceably  to  be  governed  by  a  few  men  it  is 
not  to  be  denied  that  the  state  may  be  so  organized  as  very 
much  to  advance  the  social  interests  of  the  inhabitants.  In 
recent  years  the  progress  made  by  the  Russian  nation  and  by 


392  THE  REFERENDUM  IN  AMERICA 

the  Germans,  among  whom  there  are  still  traces  of  arbitrary 
power  adhering  to  the  crown,  has  been  very  great.  A  gov- 
ernment which  anticipates  the  people's  wants  and  provides 
for  them,  can  do  a  great  deal  to  advance  civilization  in  one 
way  or  another.  A  great  modern  socialistic  engine,  it  can 
carry  roads  and  railways  into  wildernesses,  erect  telegraph 
and  telephone  lines,  build  schools,  markets,  hospitals,  post 
offices  and  even  employ  the  people  in  factories,  mines  and  on 
public  works,  so  as  to  create  an  appearance  of  prosperity  and 
thrift.  Whether  it  is  not  better  for  a  race  to  work  out  its 
own  destiny  without  aids  of  this  kind  remains  an  open  ques- 
tion which  social  philosophers  will  long  continue  to  discuss. 
It  is  a  fact,  however,  that  when  a  people  have  once  come  to 
know  and  to  appreciate  the  privilege  of  being  able  freely  to 
advance  without  the  aids  or  interferences  of  a  power  which 
is  set  up  over  their  heads  it  is  hard  to  get  them  again  to  sub- 
mit with  good  grace  to  any  body  of  rulers  or  bureaucrats,  no 
matter  how  much  the  latter  may  protest  that  they  are  working 
solely  in  the  public  interest.  In  the  presence  of  great  modern 
standing  armies  under  strict  organization,  revolutionary  sen- 
timents may  be  suppressed  and  the  "  state  "  may  pursue  its 
course  more  or  less  independent  of  public  opinion.  These, 
however,  are  not  the  conditions  which  should  naturally  rule 
\  in  a  society  and  a  representative  system  of  popular  govern- 
|  ment  is  to-day  a  factor  which  must  be  reckoned  with  nearly 
(  everywhere. 

The  evils  which  have  developed  in  this  system  are  not 
small  ones.  The  growth  of  dangerous  groups  in  parlia- 
ments, such  as  those  which  gather  under  the  name  "  social- 
ist ",  the  advocates  of  unsound  forms  of  currency,  the 
thoughtless  popular  leaders  who  clamor  for  a  war  of  con- 
quest in  order  to  please  the  multitude  and  ride  back  on  a  wave 
of  public  enthusiasm  to  another  term  of  office,  the  selfish  and 
the  dishonest  who  would  use  the  government  to  enrich  them- 
selves personally  and  the  class  which  they  represent,  the 
"  Boss  "  and  his  men  who  are  the  curse  of  the  system  in 
America — all  these  are  manifestations  which  cause  reflective 


REFERENDUM  VS.  REPRESENTATIVE  SYSTEM  393 

ople  to  pause  and  tremble  for  the  future  of  representative 
overnment.  If  a  legislature  chosen  by  the  people  is  to  de- 
velop traits  like  these  there  are  plainly  very  great  evils  at  hand 
for  which  we  are  justified  in  seeking  some  drastic  remedy. 
If  the  people  cannot  select  from  among  themselves  delegates 
who  are  above  a  desire  to  overturn  the  present  social  order, 
or  to  perpetuate  themselves  in  office,  or  to  steal  from  the  state 
and  from  society,  or  to  cheapen  the  currency,  or  to  precipitate 
a  war  for  the  sake  of  the  excitement  and  exhilaration  that  it 
yields  to  the  lowest  classes  of  the  inhabitants,  parliamentary 
government  must  indeed  have  passed  through  the  day  of  its 
greatest  glory  and  usefulness. 

In  the  United  States  we  have  arrived  at  such  a  point  that 
political  organizations  under  party  names  are  created  to  deal 
and  traffic  in  offices.  The  political  organization  like  a  busi- 
ness organization  has  its  chief  who  appoints  his  subordinates 
and  this  group,  each  member  faithful  to  the  one  over  him 
under  penalty  of  discharge  from  his  place,  so  controls  the 
party  and  the  electoral  machinery  that  no  one  can  get  a 
public  office  of  profit  or  honor  in  the  state  except  through  the 
Boss.  This  extraordinary  personage,  wholly  unknown  to  the  & 
constitution,  levies  upon  private  individuals  and  corporations, 
and  makes  and  unmakes  laws  as  they  pay  him  for  doing. 
The  system  is  so  well  established  and  it  is  in  practice  so  diffi- 
cult to  uproot  the  great  evil,  that  influential  citizens  rather 
than  put  themselves  to  the  trouble  and  expense  and  undergo 
a  campaign  of  personal  abuse  which  would  be  conducted' 
against  them  by  the  Boss  and  his  men,  prefer  to  sit  down 
quietly  and  submit  unless  the  suffering  perchance  should  be- 1 
come  so  acute  as  actually  to  be  no  longer  tolerable.  We  see 
public  money  being  wastefully  spent,  taxes  raised  to  be  de- 
voted to  unworthy  ends,  laws  passed  which  treat  one  interest 
unjustly  at  the  expense  of  another  until  we  have  become  cal- 
lous to  the  sight.  The  good  citizen  realizes  by  experience  \ 
that  it  would  require  the  possession  of  unusual  political  talent 
and  ability  were  he  to  organize  an  effective  opposition  move- 
ment to  overthrow  this  peculiar  system,  the  expenditure  of 


394  THE  REFERENDUM  IN  AMERICA 

very  large  sums  of  money — this  is  one  of  the  most  expensive 
forms  of  patriotism  in  the  United  States — while  he  and  those 
who  enlisted  to  aid  him  would  be  assailed  and  ridiculed  on 
all  sides,  on  the  public  platform  and  in  the  Boss'  subservient 
press.  Even  with  all  the  best  elements  in  the  community 
co-operating  with  him  and  the  newspapers  and  the  clergy  on 
his  side,  he  still  could  not  hope  to  win  the  battle  unless  he 
went  to  the  real  source  of  things  and  perfected  his  organiza- 
tion in  such  a  way  in  each  local  district  and  precinct  that  he 
had  control  of  the  "  machinery  "  for  making  nominations 
and  conducting  the  elections.  How  little  influence  the  press 
seems  nowadays  to  exert  in  such  matters  has  been  demon- 
strated over  and  over  again  in  "  reform  "  campaigns  in  New 
York,  Philadelphia  and  other  large  American  cities.  All  the 
newspapers  of  a  great  city  may  be  opposed  to  the  vicious  gov- 
erning elements  and  yet  it  may  avail  nothing  if  the  reformers 
do  not  go  down  to  each  polling  place  to  organize  the  electors 
and  assemble  the  votes,  a  difficult  as  well  as  a  most  unpleasant 
task,  though  it  is  the  source  of  every  Boss'  peculiar  power. 
Moreover  and  in  addition  to  all  this  even  when  one  campaign 
is  successfully  conducted  against  such  elements,  experience 
has  shown  that  it  is  only  a  few  years  until  the  people,  forget- 
ful of  their  earlier  wrongs,  again  become  apathetic.  Break- 
ing  ranks  they  disorganize  and,  being  busily  engaged  again  in 
the  conduct  of  their  private  affairs  in  an  individualistic  com- 
munity, they  allow  the  administration  to  drift  into  the  hands 
of  the  same  classes  which  were  but  lately  driven  out  of  the 
offices  they  had  so  long  disgraced.  It  seems  incredible  that 
such  an  evil  should  have  developed  and  should  continue  to 
flourish  without  our  finding  some  way  to  combat  it.  It,  how- 
ever, has  so  long  been  with  us  that  it  must  be  regarded  as  a 
rather  natural  if  syery  illegitimate  outgrowth  of  the  repre- 
sentative system  in  a  democracy. 

This  abomination  has  assumed  an  especially  aggravated 
form  in  the  States  and  cities, — the  lanes  and  by-ways  of  our 
constitutional  system.  The  adoption  of  the  Federal  Constitu- 
tion and  the  development  of  the  national  government  by  grad- 


REFERENDUM  VS.  REPRESENTATIVE  SYSTEM  395 

ual  process  running  through  a  long  period,  helped  forward 
so  greatly  by  the  Civil  War  which  finally  disposed  of  the 
theory  of  State  Rights,  has  centred  popular  interest  in  the 
nation  to  a  degree  which  would  have  astounded  the  most 
ardent  Federalist  a  hundred  years  ago.  There  are  "  two 
patriotisms  "  in  the  United  States,  Mr.  Bryce  somewhere  tells 
us.  If  this  is  still  true  to-day  it  is  a  very  small  portion  of 
patriotism  which  is  reserved  for  Pennsylvania,  or  New  York, 
or  Louisiana,  or  Maryland.  It  does  not  thrill  the  average 
man  very  much  to  be  the  citizen  of  any  particular  State  of  the 
Union  in  comparison  with  the  satisfaction  that  he  feels  in 
being  a  citizen  of  the  United  States — "  an  American  ".  He 
is  much  more  intent  upon  the  outcome  of  national  politics  in 
the  election  of  Presidents,  Congressmen  and  other  Federal 
officers  and  in  watching  the  development  of  a  national  legis-^r 
lative  and  administrative  policy.  There  is  little  interest  left 
to  be  bestowed  upon  the  States.  It  is  not  to  be  denied  that 
the  Bosses  in  the  States  exert  a  very  considerable  influence 
on  the  Federal  government,  but  we  have  yet  produced  no  such 
thing  as  a  national  Boss  in  the  sense  that  we  have  this  man 
in  a  city  or  a  State.  It  is  outside  national  politics,  away  from 
the  public  gaze,  in  the  dark  places  of  the  American  political 
system  that  this  evil  thrives. 

The  people  seem  to-day  to  have  no  general  understanding 
or  appreciation  of  their  State  governments.  A  citizen  who 
could  tell  you  the  period  for  which  Presidents,  Senators  and 
Congressmen  were  elected,  the  number  of  members  sitting 
in  the  Federal  legislature,  the  names  of  the  representatives 
from  his  own  district,  would  in  all  likelihood  be  unable  to 
answer  the  same  questions  regarding  the  political  organiza- 
tion of  his  State.  The  subject  does  not  interest  him.  He 
does  not  perceive  that  the  State  now  fills  any  important  place  <" 
in  the  system  and  beyond  his  conviction  that  the  legislature 
is  a  source  of  political  confusion  and  disturbance  whenever 
it  meets,  and  that  it  ought  to  be  restricted  as  much  as  possible, 
in  the  exercise  of  its  authority,  his  ideas  on  the  subject  are 
very  vague.  The  representative  system  in  the  States  is  ma- 


396  THE  REFERENDUM  IN  AMERICA 

king  way  for  the  referendum;  in  the  first  place  through  the 
development  of  the  powers  of  the  convention  which  submits 
its  constitutions  to  popular  vote ;  and  secondly,  through  the 
poll  of  the  people  on  State  and  local  laws  which  are  passed 
along  to  them  by  the  general  assembly  or  legislature.  This 
method  of  polling  the  people  to  find  out  what  they  think  of 
a  proposed  legislative  measure,  as  a  means  of  avoiding  the 
evils  which  have  grown  up  in  connection  with  the  representa- 
tive system,  has  been  supplemented,  moreover,  by  the  develop- 
ment of  a  curious  activity  by  local  administrative  boards, 
which  are  sometimes  elected  by  the  people,  though  many  are 
appointed  by  executive  and  judicial  officers.  It  is  noteworthy 
to  how  great  an  extent  judges,  who  have  fortunately  proven 
more  incorruptible  than  other  classes  of  public  officials,  have 
been  saddled  with  extra-judicial  duties,  as  for  instance  in  re- 
gard to  the  laying  out  of  roads  and  the  granting  of  liquor 
licenses.  By  one  makeshift  or  another,  therefore,  the  tend- 
ency to  place  the  responsibility  upon  the  shoulders  of  new 
agents  has  gone  forward  until  the  books  on  American  gov- 
ernment will  soon  have  to  be  rewritten. 

Not  only  are  the  constitutions,  with  their  great  body  of  pro- 
visions and  specifications  in  respect  of  so  many  various 
subjects,  submitted  to  popular  vote,  as  well  as  the  amend- 
ments to  these  instruments,  but  so,  too,  are  many  acts  of  the 
legislature.  Restricted  as  they  have  been  to  a  constantly  "har-1 
rowing  field  of  activity  the  legislatures  must  submit  a  number 
of  matters  to  the  vote  of  the  people  of  the  State,  such  as 
measures  to  borrow  money  on  the  State's  credit,  banking^acts, 
bills  to  remove  State  capitals,  etc.  In  one  State,  South 
Dakota,  the  initiative  and  the  referendum  have  been  intro- 
duced into  theconsHtutional  system  in  a  more  general  form, 
i.  e.,  from  this  time  forward  any  law  which  the  representative 
legislature  has  passed  must  be  submitted  to  the  people,  if  a 
certain  number  of  the  citizens  request  it.  And,  moreover, 
J  entirely  new  measures  may  be  initiated  or  originated  by  the 
people  and  these  if  accompanied  by  petitions  containing  a  des- 


REFERENDUM  VS.  REPRESENTATIVE  SYSTEM  397 

ignated  number  of  signatures  must  also  be  submitted  to  pop-  (. 
ular  vote.  If,  however,  no  special  authorization  to  submit 
a  subject  to  the  citizens  is  contained  in  the  constitution  the 
legislature  of  the  State  is  without  the  power  to  call  for  a  ref- 
erendum on  general  State  laws.  To  the  legislature  the  people 
have  delegated  the  law-making  power  and  it  is  not  compe- 
tent for  it  to  re-delegate  its  authority  to  any  other  body,  not 
even  to  pass  it  back  again  to  the  people  themselves.  This  is 
a  well  established  principle  in  American  public  law. 

On  the  other  hand,  respecting  acts  which  relate  to  the  man- 
agement of  the  people's  common  affairs  in  the  local  political 
districts,  the  legislature  is  held  to  have  more  extensive  powers. 
It  may  and  does  submit,  without  specific  authorization  de- 
rived from  the  State  constitution,  laws  establishing  the 
boundaries  of  cities,  towns,  counties,  etc.,  fixing  local  cap- 
itals and  seats  of  government,  levying  taxes  and  contracting 
loans  for  local  purposes,  exercising  the  police  power  with 
reference  to  the  liquor  traffic  and  the  running-at-large  of  live 
stock,  and  in  relation  to  many  other  different  subjects.  In 
this  case  the  courts  conceive  that  the  legislature  does  not  dele- 
gate its  authority  as  a  law  maker,  and  distinctions  are  drawn 
between  laws  to  apply  to  the  whole  State  and  to  be  voted 
on  by  the  people  of  the  whole  State,  and  laws  applying  to  and 
submitted  in  the  separate  local  subdivisions  of  the  State. 

There  is  one  limitation  here  which  it  is  worth  while  to  ob- 
serve and  it  is  this, — that  it  is  not  competent  for  the  legisla- 
ture at  its  pleasure  to  treat  subjects  of  State  and  local 
legislation  as  if  they  were  interchangeable.  The  legislature 
of  Massachusetts  in  1894  asked  the  justices  of  the  Supreme 
Court  of  that  State  for  their  opinion  upon  two  important 
questions,  as  follows : 

"  ( i )  Is  it  constitutional  in  an  act  granting  to  women  the 
right  to  vote  in  town  and  city  elections  to  provide  that  such 
act  shall  take  effect  throughout  the  Commonwealth  upon  its 
acceptance  by  a  majority  vote  of  the  voters  of  the  whole  Com- 
monwealth ? 


398  THE  REFERENDUM  IN  AMERICA 

"  (2)  Is  it  constitutional  to  provide  in  such  act  that  it  shall 
take  effect  in  a  city  or  town  upon  its  acceptance  by  a  majority 
of  the  voters  of  such  city  or  town  ?  " 

In  this  opinion  a  majority  of  the  justices  recognized  that  a 
law  applying  to  the  whole  State  referred  in  this  manner  to 
popular  vote  would  in  general  be  unconstitutional  as  a  re- 
delegation  of  power,  while,  on  the  contrary,  a  law  relating  to 
a  local  district  would  usually  be  held  to  be  constitutional. 
Nevertheless  the  subject  of  the  local  law  must  be  one  that 
lends  itself  properly  to  local  treatment.  Changing  the  con- 
ditions upon  which  citizens  shall  exercise  the  franchise  is  not 
a  subject  of  this  kind.  Such  a  proposition  could  not  be  sub- 
mitted in  local  districts,  the  adoption  of  the  law  being  made 
optional  with  the  people  in  their  separate  communities.  The 
justices  therefore  answered  both  questions  in  the  negative, 
thus  calling  attention  to  a  fact  which  is  entitled  to  general 
recognition,  in  order  that  a  check  may  be  put  upon  a  serious 
abuse  growing  out  of  the  confusion  that  has  arisen  in  many 
States  by  reason  of  the  legislature's  disregard  of  plain  legal 
distinctions  of  this  character. 

The  courts  have  made  use  of  two  main  lines  of  argument  in 
justification  of  the  submission  of  laws  to  popular  vote  in  local 
districts.  In  the  first  place  it  is  argued  that  a  legislature  may 
pass  a  law  contingent  upon  the  happening  of  a  future  event, 
or  the  fulfillment  of  a  specified  condition,  e.  g.,  the  arrival  of 
a  certain  future  date  when  the  law  is  to  go  into  effect,  or  the 
performance  of  some  act  by  other  parties  or  individuals. 
This  condition,  it  is  conceived,  may  also  be  a  favorable  vote 
of  the  people.  Of  this  legal  theory  much  has  been  made  in 
many  States,  throughout  a  long  series  of  important  decisions, 
and  it  finds  some  support  in  several  leading  Federal  cases.1 
If  such  a  condition  may  be  an  affirmative  vote  of  the  people 
of  a  city  or  county  one  is  impelled  to  ask  why  it  may  not  also 
be  a  vote  of  the  people  of  a  State,  in  which  case,  however,  the 
argument  seems  in  general  to  have  won  no  favor  in  the 

1  Cf.  Cargo  of  the  Brig  Aurora  v.  United  States,  7  Cranch,  382 ;  Field 
v.   Clark,    143   U.   S.   649. 


REFERENDUM  VS.  REPRESENTATIVE  SYSTEM  399 

courts.  No  other  impression  is  created  by  a  study  of  the 
various  judicial  opinions  bearing  on  this  subject,  in  the  face 
of  such  odd  distinctions,  than  that  a  belief  exists  that  a  limit  i 
must  be  established  somewhere  to  a  practice  which  in  the 
end  may  carry  us  a  perilous  distance  away  from  the  principles 
of  representative  government.  For  this  reason  the  courts 
seem  willing  to  accept  the  contingency  theory  in  the  one  case 
while  they  reject  it  in  the  other. 

As  for  the  second  argument  urged  in  defense  of  the  refer- 
endum on  local  government  acts,  it  is  developed  from  the  fact 
that  the  legislature  is  in  possession  of  extensive  powers  over 
municipalities  and  the  local  political  subdivisions  of  the  State. 
This  theory  appears  to  rest  on  a  more  substantial  basis.  The 
city,  the  county  and  the  other  local  governmental  districts  are 
the  creations  of  the  State  through  its  agent  the  legislature. 
The  legislature  may  do  with  them  very  much  as  it  likes  except 
as  it  has  been  limited  in  plain  terms  by  the  State  constitution. 
If  it  is  desired  that  the  city  shall  be  governed  by  one  person, 
or  a  committee  of  persons,  it  is  undoubtedly  its  right  to  make 
such  a  rule  and  to  enforce  it.  City,  county  and  town  affairs 
are  administered  in  obedience  to  laws  and  in  accord  with  prin-  ^ 
ciples  which  are  very  diverse.  The  legislature  certainly  does 
not  go  outside  its  constitutional  bounds  when  it  passes  an  act 
respecting  local  government  which  is  to  be  submitted  to  a 
vote  of  the  people.  Legally  it  is  as  competent  for  it  to  put 
the  responsibility  for  the  management  of  local  affairs  on  the 
shoulders  of  the  people  as  a  whole,  as  upon  a  mayor,  a  board 
of  aldermen,  a  commission  or  any  other  local  agency.  It  is 
argued,  too,  that  it  is  expedient  for  the  legislature  to  submit 
many  local  questions  to  popular  vote,  those  for  instance  upon 
which  the  people  are  likely  to  disagree  such  as  financial  pro- 
posals and  laws  for  the  prohibition  of  the  liquor  trade.  If 
rules  are  to  be  established  by  a  distant  authority  for  a  local 
district  it  is  in  the  highest  sense  desirable  that  there  should  be 
an  assurance  of  the  acquiescence  of  the  people  in  them.  This 
acquiescence  is  the  more  likely  if  the  citizens  have  been  al- 
lowed to  vote  on  the  subject  by  way  of  the  referendum. 


400  THE  REFERENDUM  IN  AMERICA 

It  is  of  course  to  be  understood  that  the  local  government 
in  its  turn,  through  its  representative  legislature — city  coun- 
cil, village  trustees,  etc. — may  not  submit  its  own  by-laws  ad 
libitum  except  upon  authority  expressly  derived  from  the 
vState  (through  the  legislature  or  the  convention).  This 
would  be  a  re-delegation  of  power  for  which  there  could 
-be  no  legal  justification.  The  municipal  corporation  or  other 
local  political  district  is  a  derivative  creation.  When  it  is 
assigned  a  task  it  can  no  more  pass  it  on  to  another  body,  as 
for  instance  to  the  people,  than  can  the  legislature  itself. 
The  general  rule  that  the  legislature  may  not  re-delegate  the 
law-making  power,  with  the  well  recognized  exception  to  the 
rule  that  the  submission  of  local  government  acts  to  popular 
vote  is  no  such  re-delegation  of  authority,  however  the  courts 
may  seek  to  justify  it,  is  firmly  grounded  in  the  American 
practice. 

Within  a  few  years  past  the  Swiss  institutions,  the  initia- 
tive and  referendum,  have  been  studied  in  many  lands  by 
many  men  who  have  had  many  different  interests  to  serve. 
Wherever  in  Europe,  west  of  the  German  Empire,  representa- 
tive government  has  already  established  itself  on  substantial 
foundations  the  next  step  seems  to  be  the  referendum  or 
plebiscite,  advocated  either  as  a  corrective  of  evils  which  have 
developed  in  the  representative  system  or  as  a  means  of  help- 
ing some  agitator  gain  his  ends.  In  France  a  revolutionary 
group  has  for  years  urged  a  plebiscite  on  the  republican  con- 
stitution in  the  hope  that  the  people  would  vote  against  it 
and  the  way  would  then  be  opened  for  another  form  of  gov- 
ernment. The  name  plebiscite  in  French  and  Italian  history 
is  at  once  suggestive  of  the  plebiscites  of  the  Napoleons,  and 
of  Victor  Emmanuel  during  the  reconstruction  days  in  Italy, 
when  questions  of  allegiance  were  submitted  to  the  people 
under  the  auspices  of  an  army  of  occupation,  a  not  very  cer- 
tain method  of  securing  a  free  expression  of  public  opinion.2 

'2  Cf.  Maine  on  Popular  Government,  2nd  ed.,  London.  1886,  pp.  65-66; 
A.    V.    Dicey,    "  Ought    the    Referendum    to    be    Introduced    into    Eng- 


REFERENDUM  VS.  REPRESENTATIVE  SYSTEM  401 

In  Belgium,  when  the  constitution  of  that  kingdom  was 
recently  revised,  the  subject  of  the  referendum  was  generally 
discussed  throughout  the  country.  A  proposition  to  intro- 
duce this  feature  of  the  Swiss  system  in  a  modified  form  into 
the  new  Belgian  constitution  was  seriously  entertained  by  the 
constituent  assembly  at  Brussels  and  it  led  to  a  number  of 
[useful  and  thorough  inquiries  into  the  history  of  law-making 
Iby  popular  vote.  By  far  the  most  important  of  these  works 
fey  Belgian  writers  is  The  Referendum  in  Switzerland,  by 
Simon  Deploige.  This  excellent  book  is  made  more  available 
to  English  readers  by  Mr.  Trevelyan's  translation,  with  the 
full  and  instructive  notes  by  Miss  Lilian  Tomn.3  The  sub- 
ject has  been  treated  in  a  less  specific  way  by  M.  de  Lave- 
ieye  and  other  eminent  students  of  constitutional  questions 
in  Belgium.* 

In  England  the  subject  has  received  not  a  little  attention 
from  Prof.  A.  V.  Dicey,  Mr.  Lecky,  Mr.  Bryce,  Mr.  St.  Loe 
Strachey  and  other  writers  who  have  approached  the  subject 
in  a  spirit  of  sincere  inquiry.  The  leaders  of  the  Socialist 
and  Labor  party  in  England  have  expressed  an  interest  in  the 
referendum  also,  though  with  different  motives.  In  a  recent 
parliamentary  campaign  the  Liberal  party  put  forward  as  one 
of  its  issues  a  "  Local  Veto  "  bill  which,  had  it  been  passed, 
would  have  introduced  into  England  the  principle  of  allowing 
the  people  to  vote  in  local  districts  on  the  question  of  pro- 
hibiting the  liquor  trade,  in  very  much  the  same  manner  as 
in  the  American  States.  In  the  British  Islands  it  is  not  un- 
usual for  a  poll  to  be  taken  in  parishes  and  towns  on  the  sub- 
land"?  Contemporary  Review  for  April,  1890;  C.  Borgeaud,  Histoire 
du  Plebiscite,  1887  ;  Lecky,  Democracy  and  Liberty,  Vol.  I,  pp.  14-15, 
38,  40,  478,  483. 

3  Le  Referendum  en  Suisse  par  Simon  Deploige,  avocat,  precede  d'une 
lettre  sur  le  Referendum  en.Belgique  par  J.  Van  Den  Heuvel,  Brussels, 
1892.     The  English  translation  was  published  in  London  in  1898. 

4  Cf.  Lc  Gouvcrnement  dans  le  Democratic,  Vol.  II,  pp.   146  et  scq. ; 
Lecky,  Democracy  and  Liberty,  Vol.  I,  p.  285  ;  A.  Le  Ghait,  "  The  Re- 
vision of  the  Belgian  Constitution,"  North  American  Review,  Vol.  157, 
P-  550. 


402  THE  REFERENDUM  IN  AMERICA 

ject   of    establishing    free    libraries    or   constructing    water 
works.5 

In  Canada,  where  it  is  to  be  hoped  this  subject  may  soon 
receive  the  attention  it  deserves  from  some  Canadian  student, 
there  is  a  large  fund  of  material  for  a  scientific  treatise  on  the 
referendum.  Local  matters  such  as  the  issue  of  bonds  in  aid 
of  industrial  enterprises  and  the  increase  of  the  rates  are  fre- 
quently submitted  to  popular  vote.  In  the  Dominion,  where 
'the  referendum  is  usually  known  as  the  plebiscite,  the  ques-' 
tion  of  prohibiting  the  liquor  traffic,  since  the  passage  of  the 
"  Scott  Act  "  in  1878,°  has  frequently  been  submitted  to  the 
people  in  their  local  communities.  More  recently  this  subject 
'  has  been  referred  to  popular  vote  in  the  provinces.  Such  a 
plebiscite  was  not,  in  a  strict  sense,  a  reference  of  a  law  to  the 
people  but  simply  a  device  by  which  the  legislature  could  ac- 
quaint itself  with  the  popular  sense.  As  the  provincial  legis- 
lature in  Ontario  declared,  it  was  "  desirable  that  opportunity 
should  be  afforded  to  the  electors  of  this  province  to  express 
a  formal  opinion  as  to  whether  or  not  the  importation,  manu- 
facture and  sale  into  or  within  this  province  of  intoxicating 
liquors  as  a  beverage  should  be  immediately  prohibited  ". 
This  opinion  it  was  conceived  could  be  "  most  conveniently 
ascertained  "  through  a  plebiscite.7 

In  1898  a  poll  of  the  people  of  the  entire  Dominion  was 
taken  on  the  subject  of  prohibition,  again  merely  in  an  ad- 
visory way,  no  law  being  actually  submitted  and  the  govern- 
ment binding  itself  to  no  course  or  policy  afterward.  As  in 
the  States  of  the  United  States  the  Canadian  legislature  re- 
ferred this  question  to  the  people  in  order  to  conciliate  the 
temperance  element  which  had  begun  to  exert  an  active  in- 
fluence in  politics.  This  act,  known  as  "  The  Prohibition 
Plebiscite  Act  of  1898  ",  proposed  that  the  following  question 
should  be  addressed  to  each  voter  in  the  Dominion :  "  Are 

5  For  instances  of  local  option  on  the  liquor  question  in  Norway  see 
the  London  Times  for  April   13,   1898. 
84ist  Victoria,  chap.    16. 
7  Statutes  of  the  Province  of  Ontario,  s6th  Victoria,  p.  156. 


REFERENDUM  VS.  REPRESENTATIVE  SYSTEM  403 

you  in  favor  of  the  passing  of  an  act  prohibiting  the  importa- 
tion, manufacture  or  sale  of  spirits,  wine,  ale,  beer,  cider  and 
all  other  alcoholic  liquors  for  use  as  beverages  "  ?  to  which 
the  voter  was  to  reply  "  yes  "  or  "  no  "  by  placing  a  cross- 
mark  in  a  space  prepared  for  the  purpose.8  The  vote  is 
very  noteworthy  from  the  fact  that  it  is  the  first  attempt  that 
has  ever  been  made  to  collect  the  sense  of  the  people  on  a  sub- 
ject of  legislation  over  any  territorial  district  of  so  great  an 
area.  Although  plebiscites  are  frequently  taken  in  the  indi- 
vidual States  of  the  United  States  we  have  never  yet  had  a 
referendum  which  included  all  the  States,  embracing  there- 
fore the  whole  Federal  area.  This  election  cost  the  Dominion 
of  Canada  about  $300,000,°  and  although  there  was  a  small 
majority  on  the  face  of  the  returns  in  favor  of  prohibition, 
all  the  provinces  voting  for  the  proposition  except  Quebec, 
less  than  30  per  cent  of  those  entitled  to  vote  on  the  subject 
went  to  the  polls.10 

The  Canadian  experience  as  to  the  apathy  of  the  people  on 
questions  of  legislation  which  are  referred  to  them  is  therefore 
in  complete  harmony  with  our  experience  in  the  United 
States.  Unlike  the  legislatures  in  the  United  States,  the 
Parliament  and  legislatures  in  Canada  may  submit  laws  to 
popular  vote  if  they  consider  this  course  to  be  politic  and 
expedient.  The  Canadian  legislatures,  federal  and  pro- 
vincial, have  plenary  powers.  They  are  not  in  any  sense 
delegates  of  the  Imperial  Parliament  at  Westminster  but 
possess  powers  quite  as  large  as  those  held  by  that  body  it- 
self. The  Dominion  Parliament  as  well  as  the  legislatures 
of  the  separate  provinces  may  legislate  conditionally,  there- 

8  Acts  of  the  Parliament  of  the  Dominion  of  Canada,  6ist  Victoria, 
Vol.  I,  p.  219;  cf.  also  New  York  Nation  of  May  5,  1898. 

9  London  Times  of  Oct.  i,  1898,  p.  5. 

10  A  Canadian  correspondent  wrote  to  the  New  York  Evening  Post  on 
the  day  after  the  election  as  follows :  "  In  some  cases  half  the  electorate 
polled  but  these  were  exceptional.     From   one-fourth  to  a  third  was  a 
more  common  proportion,  and  in  some  districts  it  fell  as  low  as  one- 
eighth.     Many  of  those  who  did  vote  seemed  to  wander  into  the  polling 
stations  more  by  accident  than  by  set  purpose." 


4°4  THE  REFERENDUM  IN  AMERICA 

fore,  as  for  instance  by  enacting  that  a  law  shall  come  into 
effect  only  on  petition  or  vote  of  a  majority  of  the  electors.11 

In  the  Anglo-Saxon  communities  in  Australia  and  New 
Zealand  the  referendum  has  already  gained  considerable 
headway  and  it  seems  likely  to  enjoy  a  much  greater  develop- 
ment within  the  next  few  years.12  The  same  principle  has 
lately  had  several  applications  in  the  course  of  the  efforts 
which  have  been  made  to  bring  the  various  colonies  together 
in  a  Federal  Union,  a  result  that  is  now  at  last  assured.  It 
was  even  proposed  when  the  Commonwealth  Bill  was  being 
discussed  that  the  referendum  should  be  incorporated  in  the 
Federal  Constitution  as  a  permanent  feature,  under  definite 
limitations,  of  the  new  government. 

In  our  own  Republic  the  reform  has  recently  been  given  a 
great  impetus  by  reason  of  the  admiration  which  has  been 
expressed  for  Switzerland's  example.  This  result  has  been 
induced  in  some  degree  by  a  study  of  the  subject  by  a  large 
number  of  competent  writers  on  constitutional  questions,13 

11  Cf.  A.  H.  F.  Lefroy,  The  Law  of  Legislative  Power  in  Canada,  To- 
ronto, 1898,  pp.  244-59,  495-96;  New  York  Nation  of  May  5,  1898. 

12  Cf.    Miss   Lilian   Tomn,   "  The   Referendum   in   Australia   and   New 
Zealand ",   Contemporary  Review,  Vol.   72,   p.   242. 

13  Cf.  J.   M.  Vincent,  State  and  Federal  Government  of  Switzerland, 
Baltimore,  1891  ;  A.  L.  Lowell,  Governments  and  Parties  in  Continental 
Europe,  1896,  Vol.  II,  pp.  240  et  seq.,  and  "  The  Referendum  in  Switz- 
erland and  America",  Atlantic  Monthly  for  April,   1894,  p.  517;  E.  L. 
Godkin,    Some    Unforeseen    Tendencies    of   Democracy,    1898,    pp.    13^8 
et  seq.;   J.    R.    Commons,    Proportional  Representation,    1896,    pp.    186 
et  seq.;  G.  Bradford,  The  Lesson  of  Popular  Government,  Vol.  II,  pp. 
189  ct  seq.;  A.  B.  Hart,  "Vox  Populi  in  Switzerland  ',  New  York  Na- 
tion, Vol.  59,  p.   193  5  New  York  Nation,  Vol.  58,  p.  206.     The  leading 
writings  and  works   in   other  countries  on  this   subject,   which   may  be 
profitably  consulted  by  the  student  are :  Adams  and  Cunningham,   The 
Swiss  Confederation,  London,   1889;   W.  E.  H.  Lecky,  Democracy  and 
Liberty,  London,  1896,  Vol.  I,  pp.  277  et  seq.;  Maine  on  Popular  Gov- 
ernment, 1886,  pp.  41,  68,  95-6;  E.  A.  Freeman,  Growth  of  the  English 
Constitution,  chap,   i,  for  an  account  of  the  Swiss  Landsgemeinde ;   C. 
B.   Roylance-Kent  in  MacMillan's  Magazine,  Vol.   69,   p.    15  ;   National 
Review  for  February,  March   and  April,   1894;   London  Spectator,  Vol. 
72,  p.   188,  and  Vol.  73,  pp.  234,  494  ;   Speech  by  Mr.  A.  J.  Balfour  re- 
ported in  the  London  Times  of  Feb.  5,   1894;   A.  V.  Dicey,  "The  De- 
fence of  the  Union  "  Contemporary  Review,  Vol.  61,  p.  314;  S.  Deploige, 


REFERENDUM  VS.  REPRESENTATIVE  SYSTEM  4°5 

but  it  has  been  chiefly  encouraged  by  a  popular  political 
movement  in  the  West  of  far-reaching  proportions.  A  de- 
mand for  the  introduction  of  the  initiative  and  the  referen- 
dum into  the  practice  of  the  United  States  is  to  be  found  in 
the  "  platforms  "  of  a  party  whch  has  lately  made  itself  a 
dominating  force  in  a  number  of  States.  There  are  "  Direct 
Legislation  Leagues  ".  Articles  on  this  subject  are  constantly 
appearing  in  newspapers  and  magazines  which  are  devoted 
to  radical  social  and  political  reforms.  Large  classes  of  the 
population  seem  to  have  become  imbued  with  the  idea  that  if 
the  people  should  once  secure  the  privilege  of  originating 
and  adopting  their  own  laws  all  other  difficulties  would  vanish 
away.  A  "  Convention  "  attended  by  more  than  500  dele-* 
gates  was  recently  held  in  Ohio  at  which  a  full  list  of 
State  officers  was  nominated  upon  a  platform  of  a  single 
"  plank  " :  "  Direct  legislation  under  the  system  known  as  the 
initiative  and  the  referendum." 

The  initiative  and  the  referendum,  called  by  these  names, 
as  a  result  of  this  movement  have  been  introduced  into  South 
Dakota  with  respect  to  all  laws  passed  by  the  State  legislature, 
as  well  as  by  the  local  municipal  legislatures ;  in  Nebraska 
with  respect  to  laws  passed  by  the  State  legislature  in  refer- 
ence to  localities;  and  in  San  Francisco,  by  the  new  charter, 
with  respect  to  city  by-laws.  These  recent  manifestations  of 
interest  in  an  imported  institution  real  students  of  American 
government  will  regard  with  less  favor  than  were  the  same 
interest  expressed  for  the  more  natural  outgrowths  of  our 
town-meeting  system.  I  think  it  has  been  sufficiently  well 
indicated  by  this  time  to  what  a  degree  of  development  the 
initiative  and  the  referendum  or  plebiscite  have  attained  in 

op.  cit. ;  J.  Signorel,  Etude  de  legislation  comparee  sur  Ic  referendum 
legislatif,  Paris,  1896,  a  work  of  470  pages  "  crowned  "  by  the  Faculte 
de  Droit  of  Paris  in  1894;  Borgeaud,  Etablissement  et  Revision  des 
Constitutions,  Paris,  1893  ;  Saleilles  in  Revue  du  Droit  Public,  Septem- 
ber-October, 1894,  pp.  345  et  seq. ;  Numa  Droz,  Etudes  et  Portraits  Poli- 
tiques,  Geneva,  1895,  and  "  The  Referendum  in  Switzerland "  in  the 
Contemporary  Review  of  March,  1895 ;  E.  de  Laveleye,  op.  cit.,  Vol.  II, 
pp.  146  et  seq. 


406  THE  REFERENDUM  IN  AMERICA 

this  country  by  a  natural  historical  evolution.  The  referen- 
dum on  State  Constitutions,  beginning  with  Massachusetts 
and  New  Hampshire,  and  spreading  over  the  entire  Union; 
the  poll  of  the  people  on  calling  a  convention  to  revise  the 
constitution  and  on  constitutional  amendments  proposed  by 
the  legislature ;  the  referendum  on  propositions  to  make  loans 
on  the  credit  of  the  State,  on  banking  acts  and  laws  to  change 
the  sites  of  State  capitals;  the  referendum  on  local  govern- 
ment acts,  financial  propositions  and  "  local  option  "  laws 
in  respect  of  the  sale  of  liquors  and  the  running  at  large  of 
domestic  animals — these  are  all  the  outgrowths  of  a  natural 
movement  which  can  be  traced  down  historically  step  by  step 
rom  the  New  England  town-meeting.  Again,  the  petition 
for  an  election  on  "  prohibition  "  or  on  a  proposition  to  issue 
bonds,  which  has  had  a  place  in  the  American  system  of  local 
government  for  many  years,  is  the  initiative  in  the  same 
form  in  which  it  to-day  occurs  in  Switzerland.  We  do  not 
need  to  go  outside  of  our  own  national  borders  for  the  ma- 
terial  for  a  work  upon  the  initiative  and  the  referendum.  It 
exists  in  America  in  abundance,14  and  if  the  system  of  submit- 
ting laws  to  popular  vote  shall  be  destined  to  enjoy  a  still 
greater  development  in  this  country  it  would  be  much  safer 
'and  much  more  legitimate  were  we  to  draw  more  freely  upon 
the  native  experience  instead  of  turning  all  the  while  to 
another  land  in  which  social  and  political  conditions  are  nec- 
essarily very  different  from  our  own.  At  this  day  it  will  be 
found  to  be  no  wiser  to  introduce  strange  features  into  the 
government  than  it  proved  to  be  in  Pennsylvania  in  1776. 
Whatever  is  of  greatest  value  in  a  government  and,  especially 
true  is  this  maxim  in  reference  to  democratic  government,  is 
that  which  flows  naturally  out  of  a  people's  experience.  They 
are  accustomed  to  types  and  forms.  They  have  social  and 
political  habits  which  are  grounded  in  deep-rooted  racial 
traits.  To  disregard  the  teachings  of  history  in  this  respect 

14  The  Canadian  plebiscite  is  also  a  natural  development  without  con- 
nection with  the   Swiss   influence. 


REFERENDUM  VS.  REPRESENTATIVE  SYSTEM  4°7 

is  to  invite  social  friction  which  may  lead  to  serious  disorders 
as  experience  with  government  running  through  many  cen- 
turies tends  abundantly  to  show. 

Whatever  may  be  the  future  of  the  initiative  and  the  refer- 
endum in  the  American  States  it  will  always  be  necessary  to 
take  account  of  several  basic  facts  of  which  great  bodies  of  the 
people  seem  often  to  be  unmindful.     These  are  of  various 
sorts,  but  they  may  all  be  resolved  into  one  primary  fact  which ' 
has  to  do  with  the  manifest  inequality  of  men.     All  men  are  I 
clearly  not  endowed  with  the  political  genius  to  an  equal  de-  1 
gree.     All  are  not  equally  intelligent,  moral  or  capable.     The  1 
whole  social  and  economic  order  testifies  to  this  inequality, 
as  do  our  biological  progress  and  evolution  which  go  forward 
only  because  of  the  existence  of  this  important  fundamental 
principle.     We  know  very  well  that  over  and  against  this 
natural  principle  is  set  a  great  deal  of  humanitarian  sentiment 
which  sometimes  has  taken  one  form  and  sometimes  another. 
It  was  this  sentiment  manifesting  itself  through  Rousseau 
and  the  philosophy  which  was  the  forerunner  of  the  French 
Revolution.     It  is  this  sentiment  that  is  at  the  bottom  of  the\ 
great  social  upheaval  which  to-day  threatens  the  world,  and  I 
which  in  one  country,  as  in  Germany,  may  become  a  demand  \ 
for  sweeping  economic  reforms  and  in  another,  where  the   i 
popular  disposition  is  less  academic  and  speculative,  for  some 
superficial  political  reform.     Elements  in  the  American  pop- 
ulation, which  are  more  or  less  the  same,  have  repeatedly  or- 
ganized poJiiicjLjMWties  to  secure  paper  money,  silver  money, 
to  prohibit  the  liquor  trade,  to  enfranchise  women,  to  combat 
large  associations  of  capital  in  industry,  to  tax  the  rich,  and 
when  thwarted  in  their  purposes  by  the  Federal  Supreme 
Court  to  abolish  or  curtail  the  powers  of  that  august  body. 
These  dissatisfied  groups  of  persons  impelled  by  the  Amer- 
ican character  for  superficiality  and  the  desire  to  attain  results 
by  sudden  applications  of  energy  to  some  one  particular  end 
have  more  recently  turned  their  attention  to  the  system  of 
law-making  in  general,  and,  quite  as  vehemently  and  appar- 
ently as  full  of  conviction  as  before,  they  announce  that  they 


408  THE  REFERENDUM  IN  AMERICA 

have  at  last  found  the  true  source  of  their  troubles  in  the 
representative  principle.  Acts  are  passed  that  are  an  of- 
fense to  the  people  and  many  subjects  upon  which  there 
should  be  legislation  are  entirely  neglected  by  the  people's 
delegates.  Therefore  the  initiative  and  the  referendum 
should  be  imported  from  Switzerland  in  order  to  re-establish 
the  principles  of  justice  and  insure  the  future  happiness  of 
the  state.  Such  a  line  of  thought  must  manifestly  rest  upon 
ar.  assumption  that  laws  are  of  an  exaggerated  potency  in 
making  the  citizens  prosperous,  a  view  which  has  long  been 
fostered  in  the  United  States  by  the  protective  tariff  cam- 
paigns. 

It  was  Rousseau  who  desired  to  simplify  government  and 
legislate  by  an  unchecked  convention  in  order  to  bring  the 
state  back  to  a  condition  as  near  as  possible  to  that  ideal  orig- 
inal form  in  which  the  citizens  met  together  under  an  oak 
tree  and  made  their  own  laws.  John  Adams  and  other 
patriots  in  this  country  successfully  combatted  such  theories 
in  the  American  States  and  organized  a  government  of  checks 
^nd  balances.  In  all  States  where  universal  suffrage  has 
been  introduced  there  is  a  certain  presumption  of  human 
equality  and  we  usually  grant  the  theory  a  good  deal  of  in- 
dulgence in  the  belief  that  democracy  is,  for  us  at  least,  the 
most  expedient  and  perhaps  the  only  practicable  form  of 
government.  We  in  America,  however,  have  so  organized 
the  state  that  the  people  as  a  mass  do  not  draft  their  own 
laws,  or  generally  adopt  them.  They  do  not  in  a  body  exe- 
cute or  administer  the  laws;  nor  again  do  they  interpret 
them  and  adjust  conflicting  interests  in  the  courts  of  justice. 
All  these  functions  adhere  to  representatives  whom  the  peo-' 
pie  themselves  elect,  or  who  are  chosen  at  second  hand  by 
agents  which  the  people  directly  elect.  We  look  to  the  people 
under  our  system  so  to  organize  themselves  in  their  various 
local  districts,  neighbors  with  neighbors,  that  they  will  choose 
to  represent  them  men  of  more  than  average  capability  and 
men  who  can  creditably  represent  them.  All  the  stock- 
holders of  a  private  company,  or  the  members  of  a  private 


REFERENDUM  VS.  REPRESENTATIVE  SYSTEM    409 

association  or  a  church  are  not  fitted  equally  well  to  conduct 
its  affairs.  It  should  be  a  matter  of  pride  with  them,  how- 
ever, as  well  as  a  matter  of  self-interest,  that  the  very  best 
men  available  for  the  service  should  be  put  forward  into 
places  of  responsibility  and  leadership.  This  is  what  we  have 
assumed  would  occur  in  each  political  precinct  under  the 
representative  system  to  the  end  that  the  wisest  men  and  the 
most  honest  men,  having  been  returned  from  each  com- 
munity, would  co-operate  in  the  work  of  public  management. 
That  we  are  a  long  way  from  having  realized  our  hopes  and 
dreams  it  takes  no  extraordinary  insight  to  perceive.  We 
are  now  offered  the  initiative  and  the  referendum  as  correc- 
tives for  the  evils  that  have  developed  in  the  system  of  gov- 
ernment by  representatives  in  two  ways,  as  these  institutions 
have  come  down  to  us  by  natural  evolution  and  as  a  foreign 
importation  recommended  to  us  by  Switzerland. 

Judge  Jameson  writing  of  this  subject,  now  a  number  of 
years  ago,  and  alluding  to  the  submission  of  the  work  of  the 
constitutional  conventions  to  popular  vote,  suggested  the  ad- 
visability of  bringing  the  people  into  the  system  as  their  own 
law-makers  to  a  still  greater  extent.  He  observed  that  "  the 
people  acting  as  legislators  need  the  antecedent  ministry  of 
intelligent  and  skilful  committees  to  gather  and  to  embody 
in  fitting  forms  their  collective  sense.  Our  conventions  are 
simply  committees  of  such  a  kind.  And  if  we  look  closely 
into  the  principles  of  legislation  the  fact  that  the  people 
never  legislate  in  a  single  body,  but  in  groups  assembled  in 
separate  districts,  not  to  debate  but  to  vote  upon  the  measures 
proposed  to  them  does  not  constitute  a  radical  difference  be- 
tween them  and  a  legislature.  The  latter  might  enact  the 
statute  law  in  the  same  way ;  and  to  those  familiar  with  the 
practices  of  such  bodies  it  may  be  doubtful  whether  legisla- 
tion so  conducted  would  not  be  more  honest,  if  not  more  in- 
telligent than  it  is  now."  15 

Mr.  Bryce  in  reviewing  the  disadvantages  of  direct  legis- 
lation by  the  people  in  general  arrives  at  a  very  similar  con- 
16  op.  tit.,  pp.  529-30. 


410  THE  REFERENDUM  IN  AMERICA 

elusion  with  reference  to  the  United  States.    He  says :  "  These 
considerations  [touching  the  manifest  incapacity  of  crowds 
to  make  their  own  laws]   will  to  most  Europeans  appear 
decisive  against  it.     The  proper  course  they  will  say  is  to 
improve  the  legislatures.     The  less  you  trust  them  the  worse 
they  will  be.     They  may  be  ignorant ;  yet  not  so  ignorant 
as  the  masses.     But  the  improvement  of  the  legislatures  is 
just  what  the  Americans  despair  of,  or  as  they  would  prefer 
to  say,  have  not  time  to  attend  to.     Hence  they  fall  back  on 
!  the  referendum  as  the  best  course  available  under  the  circum- 
•  stances  of  the  case  and  in  such  a  world  as  the  present.    They 
j\do  not  claim  that  it  has  any  great  educative  effect  on  the 
I  people.     But  they  remark  with  truth  that  the  mass  of  the 
people  are  equal  in  intelligence  and  character  to  the  average 
state  legislator  and  are  exposed  to  fewer  temptations."16 
And  again  in  another  connection  Mr.  Bryce  says : 
"  It  would  doubtless  be  better  if  good  legislatures  were  at- 
tainable to  leave  the  enactment  of  what  are  really  mere  stat- 
utes to  the  legislature,  instead  of  putting  them  in  a  consti- 
tution.    But  if  good  legislatures  are  unattainable,  if  it  is 
impossible  to  raise  the  senate  and  the  house  of  each  State 
above  that  low  level  at  which  they  now  stand,  then  the  sys- 
tem of  direct  popular  action  may  be  justified  as  a  salutary 
effort  of  the  forces  which  make  for  good  government,  open- 
ing for  themselves  a  new  channel."17 

Mr.  E.  L.  Godkin  in  an  essay  on  "  The  Decline  of  Legis- 
latures "  says :  "  Democracies  do  not  admit  that  legislatures 
such  as  we  see  them  are  the  last  thing  they  have  to  try.  They 
seem  to  be  getting  tired  of  the  representative  system.  In  no 
country  is  it  receiving  the  praises  it  received  forty  years  ago. 
There  are  signs  of  a  strong  disposition,  which  the  Swiss  have 
done  much  to  stimulate,  to  try  the  referendum  .  .  .  Inasmuch 
as  all  important  matters  devised  by  the  convention  are  sub- 
mitted to  the  people  with  eminent  success  there  is  no  reason 

18  Op.  cit.,  Vol.  I,  p.  472. 
"Ibid.,  p.  476. 


REFERENDUM  VS.  REPRESENTATIVE  SYSTEM 

why  all  grave  measures  of  ordinary  legislation  should  not 
be  submitted  also."18 

I  may  say  again  in  concluding  this  chapter  what  I  said  at 
its  beginning.  The  final  result  of  the  development,  in  the 
midst  of  which  we  now  are  no  one  can  predict  with  confi- 
dence. Though  the  evils  of  the  representative  system  are  ad- 
mittedly great  the  fact  must  be  kept  in  mind  that  direct  leg- 
islation by  the  people  is  also  attended  by  abuses  of  a  very 
serious  kind.  So  far  as  our  experience  has  already  gone  in 
the  United  States  a  number  of  glaring  defects  have  been  ex- 
hibited by  the  people  in  their  role  as  law-makers.  The  most 
impressive  of  these  is  their  strange  apathy  even  in  the  face  of 
great  issues.  They  as  a  mass  have  so  little  interest  in  legis- 
lative subjects  that  only  a  small  percentage  will  attend  the 
polls  for  special  elections  and  at  general  elections  when  in- 
dividual candidates  are  to  be  chosen,  though  the  propositions 
be  printed  on  the  same  ballots  with  the  names  of  the  candi- 
dates, a  large  proportion  of  the  voters  will  not  put  themselves 
to  the  slight  trouble  of  placing  a  pencil  mark  under  the  word 
u  yes  "  or  "  no  ".  The  conclusion  is  unavoidable  that  the 
people  considered  as  a  body  do  not  know  anything,  nor  do 
they  care  anything  about  the  merits  or  demerits  of  a  particular 
law.  They  may  know  little  in  the  opinion  of  most  of  us 
about  the  respective  merits  of  candidates  for  representative 
offices.  For  one  reason  or  another,  however,  the  people  still 
have  enough  interest  in  this  subject  to  record  their  prefer- 
ences. It  is  true  that  the  largest  possible  vote  is  never  polled 
for  candidates,  but,  speaking  roughly,  twice  as  many  electors 

18  Unforeseen  Tendencies  of  Democracy,  pp.  138,  143;  cf.  A.  V.  Dicey, 
"  Will  the  Form  of  Parliamentary  Government  be  Permanent  ?  "  Har- 
vard La^v  Review,  Vol.  XIII,  pp.  67  et  seq. ;  "  Ought  the  Referendum  to 
be  Introduced  into  England?"  Contemporary  Review,  April,  1890,  and 
"The  Referendum'',  National  Review  for  March,  1894;  Lecky,  Democ- 
racy and  Liberty,  Vol.  I,  pp.  277  et  seq. ;  E.  V.  Raynolds,  "  The  Ref- 
erendum and  Other  Forms  of  Direct  Democracy  in  Switzerland  ",  Yale 
Revietv,  Vol.  I,  p.  289  ;  "  The  Referendum  in  America  ",  London,  Spec- 
tator, Vol.  71,  p.  904;  "The  Decline  of  Legislatures",  London  Econ- 
omist of  June  ii,  1898. 


412  THE  REFERENDUM  IN  AMERICA 

vote  for  individuals  as  vote  for  measures.  Furthermore, 
very  strange  popular  idiosyncrasies  are  developed  at  elections 
on  propositions.  When  several  are  submitted  at  the  same 
time  all  are  likely  to  be^defeated,  or  else  all  adopted.  There 
seems  to  be  little  capacity  for  discrimination.  Again  very 
radical  measures  and  many  indeed  of  dangerous  tendencies 
are  not  always  rejected  by  the  people,  or  if  they  are  there  are 
not  a  few  cases  in  which  this  result  seems  to  have  been 
brought  about  by  accident  rather  than  by  serious  moral  pur- 
pose. It  is  easy  to  see  on  a  most  cursory  examination  that 
under  such  circumstances  the  people  are  very  far  from  be- 
ing an  ideal  body  of  law-makers. 

It  is  proper  to  keep  the  fact  in  mind,  however,  that  the 
initiative  and  the  referendum,  as  we  know  them,  are  under 
check  and  restraint  and  we  are  a  long  way  from  government 
by  the  masses,  even  in  South  Dakota,  where  the  principle  has 
been  carried  to  its  greatest  length.  Whether  the  referendum 
is  authorized  by  the  convention  or  the  legislature,  the  meas- 
ure is  framed  or  proposed  by  a  representative  body  of  limited 
membership.  The  people  are  merely  vetoers  or  ratifiers,  and 
although  their  rights  with  respect  to  constitutional  law  are 
very  comprehensive  in  no  case  are  their  powers  general  re- 
garding ordinary  statute  law.  In  the  worst  case,-  if  the 
submission  is  not  made  on  express  authority  of  the  legis- 
lature, there  must  be  presented  a  petition  which  contains  the 
signatures  of  at  least  five  per  cent  of  the  qualified  voters 
of  the  State.  To  assemble  the  names  of  so  many  citizens, 
as  experience  will  show,  is  not  so  easy  a  task  as  it  may  appear. 
When  we  are  asked,  therefore,  to  declare  ourselves  for  the 
representative  system  or  for  unbridled  popular  rule  the 
question,  in  so  far  as  it  has  to  do  with  the  initiative  and  the 
referendum, — at  any  rate  as  these  institutions  have  been 
developed  in  this  country — is  beside  the  mark.  The  referen- 
dum will  not  supplant  the  representative  system,  though  it 
has  been  and  may  still  be  an  influence  to  modify  this  sys- 
tem in  a  very  material  way.  Whether  we  approve  of  the 


REFERENDUM  VS.  REPRESENTATIVE  SYSTEM  413 

principle  per  se  or  disapprove  of  it,  it  is  something  that 
has  fastened  itself  securely  upon  our  constitutional  practice 
and  it  appears  to  be  assured  of  a  much  more  extended  devel- 
opment in  the  immediate  future.  One  cannot  escape  the 
thought,  therefore,  that  there  may  be  compensations  in  the 
method,  at  any  rate  with  regard  to  local  government  and  that  j 
it  may  at  least  not  be  an  agency  to  make  our  system,  already  \ 
bad,  in  any  essential  respect  the  worse.  If  this  may  seem 
like  modest  praise  it  is  perhaps  the  natural  conclusion  of  this 
volume  which  is  not  a  Tendenzwerk,  but  an  unvarnished 
historical  account  of  some  important  developments  in  the 
field  of  popular  government  in  the  United  States  of 
America. 


INDEX 


ACADEMY  OF  SCIENCES  in  Paris, 
honors  of,  shown  to  Franklin, 

31- 

Adams,  Chas.  Francis;  his  trib- 
ute to  John  Adams,  12. 

Adams,  John;  his  moderate  re- 
publican views,  5;  his  views 
of  Paine,  5-8;  his  scheme  of 
government  for  the  American 
States,  7-12;  his  warnings  dis- 
regarded in  Penna.,  17,  21  ;  his 
Constitution  in  Massachusetts, 
26,  69,  70,  105 ;  his  view  of 
Franklin,  31,  43;  his  defence 
of  the  American  Constitutions 
against  Turgot's  attack,  34,  35, 
69,  70,  71 ;  ambassador  to  Eng- 
land, 69;  his  services  to  Amer- 
ica, 66,  67,  391,  408. 

Adams,  Samuel,  views  of,  re- 
garding single  chamber  sys- 
tem, 70. 

Alabama,  limit  of  legislative  ses- 
sion in,  81 ;  submission  of  con- 
vention question  in,  132; 
amendment  of  Constitution  by 
the  legislative  mode  in,  148, 
150,  151;  school  lands  in,  284; 
fence  laws  in,  297,  300. 

Amendment  of  State  Constitu- 
tions, by  conventions,  128-141 ; 
by  legislative  mode,  137,  142- 
172. 

Anderson  ?'.  Commonwealth,  331. 

"  Anti-Constitutionalists  "  in 

Pennsylvania,  11,  38,  45,  55, 
100,  102. 


Arkansas,  amendment  of  Consti- 
tution of,  151,  157;  division  of 
counties  in,  228;  choice  of 
county  sites  in,  231,  373,  379; 
loans  in  local  districts  of,  254; 
school  tax  in,  273 ;  school 
lands  in,  284,  382;  local  option 
liquor  law  in,  290,  291,  292; 
fence  laws  in,  297,  299,  382; 
purchase  of  local  lands  in,  382. 

Australia,  ballot  system  of,  165 ; 
referendum  in,  404. 

BACHE,  Richard;  his  opposition 
to  the  first  Constitution  of 
Penna.,  30,  49;  his  alleged 
Tory  inclinations,  52. 

Ballot  system,  necessary  to  the 
referendum,  3,  no,  in,  390; 
in  Penna.,  no,  HI  ;  of  Austra- 
lia, 165. 

Bancroft  v.  Dumas,  320. 

Banks,  laws  regarding,  submitted 
to  popular  vote,  191,  192,  193. 

Barto  v.  Himrod,  211,  273. 

Bayard,  Col.  John;  his  opposi- 
tion to  the  first  Constitution  of 
Penna.,  45. 

Belgium,   referendum  in,  401. 

Beakeley,  freeholders'  charter  in 
city  of,  349. 

Biddle,  Owen,  a  member  of  the 
Penna.  Convention  of  1776,  16. 

Biennial  sessions  of  state  legis- 
latures, 79,  80,  81. 

Bills  of  Rights  in  America,  2,  5. 

"Boss"'  government  in  America, 
392,  395- 


416 


INDEX 


Boston,  representative  system  in, 
109;  street  railway  tracks  in, 

304. 
Bounties;    for  the  scalps  of  wild 

animals,  262;    for  hedges,  263. 
Bradshaw  v.  Lankford,  332. 
Bridges,  public  control  of,  259. 
Brig   Aurora    v.    United    States, 

327- 

Bryan,  George,  one  of  the  fram- 
ers  of  the  first  Constitution  of 
Penna.,  27. 

Bryce,  James,  views  of,  on  Con- 
stitutional Conventions,  98,  115, 
116;  on  local  government  in 
the  United  States,  224;  on  the 
referendum,  409,  410. 

Budget,  annual  in  cities,  269. 

Bull  v.  Read,  326. 

Burgess  v.  Rice,  319,  330. 

Burnet,  influence  of  writings  of, 
10. 

CALIFORNIA,  special  legislation 
in,  85 ;  rules  governing  par- 
liamentary procedure  in,  85; 
amendment  of  Constitution  of, 
151;  woman  suffrage  in,  160; 
removal  of  state  capitol  in,  162, 
178,  179,  205;  amendment  elec- 
tions in,  167,  170,  172;  finan- 
cial referendum  in,  183,  185 ; 
advisory  referendum  in,  207; 
classes  of  cities  and  counties 
in,  220,  221 ;  "  Home  Rule  " 
for  cities  in,  222,  235,  347-356, 
360,  361,  362;  Home  Rule  for 
counties  in,  223,  235 ;  choice  of 
county  sites  in,  231,  373;  town- 
ship system  in,  240;  high 
schools  in,  276,  374;  limit  of 
debt  of  local  districts  of,  280; 
initiative  and  referendum  in, 
307,  309,  368,  384,  387,  399;  Ju- 


dicial opinions  on  lawmaking 
by  popular  vote  in,  321,  322, 
323. 

Canada,  liquor  legislation  in,  402, 
403;  powers  of  legislatures  of, 
403,  404,  406. 

Canals,  public  aid  to,  243,  244. 

Cannon,  James ;  a  member  of  the 
Penna.  Convention  of  1776, 
1 6,  27,  48. 

Capital,  state,  selection  of  site  for 
119,  176-179;  removal  of,  in 
California,  162,  178,  205;  in 
Texas,  176;  in  Oregon,  177, 
178;  in  Kansas,  177;  in  Colo- 
rado, 177,  178;  in  South  Da- 
kota, 177;  in  Montana,  178;  in 
Georgia,  178;  in  Idaho,  178; 
in  Minnesota,  178;  in  Missis- 
sippi, 178;  in  Nebraska,  178;  in 
Washington,  178;  in  Wyoming, 
178;  in  Pennsylvania,  178. 

Cemeteries,  purchase  of  land  for, 
260,  261. 

Charters  for  cities,  222,  223,  224, 
234,  235,  335-367. 

Checks  and  balances  in  govern- 
ment, 7,  8,  67,  72,  198. 

Chinese  immigration  in  Nevada, 
207. 

Cities,  government  of,  219-224, 
234-236,  335-367 ;  sites  for  pub- 
lic buildings  in,  233;  selection 
of  name  for,  234 ;  special  legis- 
lation for,  236,  237;  failure  of 
the  representative  system  in, 

241,  335-337,  363-364- 

Clymer,  George ;  a  member  of  the 
Penna.  Convention  of  1776,  16, 
19,  45- 

Colorado,  limit  of  legislative  ses- 
sion in,  82 ;  amendment  of  Con- 
stitution of,  151,  157;  woman 
suffrage  in,  160;  amendment 


INDEX 


417 


elections  in,  167 ;  choice  of  cap- 
ital site  in,  177,  178;  poll  of 
people  in,  on  loan  for  capitol 
buildings,  188,  189 ;  poll  of  peo- 
ple on  tax  questions  in,  189, 
190 ;  on  the  division  of  counties 
in,  228;  on  choice  of  county 
sites  in,  231,  373;  on  mayor's 
salaries  in,  268 ;  on  limit  of 
debt  in  local  districts  of,  279. 

"  Common  Sense,"  Paine's,  5,  6, 
7,8. 

Condorcet;  his  advocacy  of  sin- 
gle chamber  government  in 
France,  28,  36,  37;  his  friend- 
ship with  Franklin,  31,  37. 

Confederate  pensions,  161. 

Connecticut,  first  Constitution  of, 
referred  to  popular  vote,  112; 
plan  for  amending  Constitution 
of,  146,  147,  152;  amendment 
elections  in,  166;  local  option 
in,  289,  290,  291,  371,  372. 

Constitutions,  state,  growing 
length  and  changed  character 
of,  87,  88,  89,  94,  96,  99,  100, 
155,  156,  158;  who  makes  them, 
116,  117;  referendum  on,  99- 
127 ;  the  amendment  of,  93,  94, 
128-172;  length  of  life  of,  94, 
95,  96,  99- 

Constitutional  convention,  The, 
rise  to  power  of,  71-08;  local 
districts  seeking  protection  of, 
222,  224,  338,  363,  364;  is  it  a 
sovereign  body?  124-126;  pow- 
er of  in  adopting  and  amending 
constitutions,  128-141 ;  high 
character  of,  97,  98,  117. 

"  Constitutionalists "  in  Penn- 
sylvania, ii,  38,  53,  56,  58,  59, 
60,  62,  65., 

"  Constitutional  Society "  in 
Pennsylvania,  27,  50,  61. 


Continental  Congress,  8,  13,  21, 
48,  78. 

Contingent  event,  what  consti- 
tutes a,  in  law-making,  211, 
324-328,  333,  398. 

"  Contrat  Social,"  influence  of, 
in  America,  2,  3,  6. 

Convict  labor  in  New  York,  206- 
207. 

Cooley,  Judge,  views  of,  on  dele- 
gation of  legislative  power,  209. 

Council  of  Censors  in  Pennsyl- 
vania, 21,  22,  52,  54-60,  65, 

128,  129,  143;    in  Vermont,  24, 

129,  152. 

Council  of  Revision  in  New 
York,  79,  118,  131,  139. 

Counties,  classification  of,  in 
California,  220,  221 ;  Home 
Rule  for,  in  California,  223, 
235 ;  as  local  government  units, 
224,  225 :  division  of,  228,  229 ; 
selection  of  capitals  of,  231- 
233,  373,  377-38o;  organization 
of,  into  townships,  239-240. 

D'ALEMBERT;  his  friendship  with 
Franklin,  31. 

Declaration  of  Independence,  5, 
42,  102. 

Declaration  of  the  Rights  of  Man 
in  France,  2. 

Delaware,  first  Constitution  of, 
45,  78 ;  biennial  sessions  in. 
80 ;  last  convention  in,  96 ; 
Constitution  of,  not  submitted 
to  the  people,  113,  116,  122; 
constitutional  provision  regard 
ing  conventions  in,  130;  sub- 
mission of  convention  question 
in,  132,  134,  135;  amendment 
of  Constitution  of  1776,  136, 
140,  142-145 ;  amendment  of 
later  Constitutions  of,  150; 


418 


INDEX 


local  option  law  in,  288-289; 
judicial  opinion  on  law  making 
by  popular  vote  in,  319. 

Delegated  authority  not  to  be  re- 
delegated,  209,  397- 

Dickinson,  John;  his  opposition 
to  the  first  Constitution  of 
Penna.,  45,  47,  48,  52. 

Diderot,  32. 

Direct  Legislation  Leagues,  405. 

Dogs,  laws  to  tax,  264. 

Dubourg,  Franklin's  friendship 
with,  29. 

Dupont,  Franklin's  friendship 
with,  29. 

ECONOMISTES,  Franklin's  interest 
in  the,  29. 

Educational  test  for  suffrage ;  in 
Mississippi,  120;  in  South 
Carolina,  121 ;  in  Delaware, 
122;  in  Louisiana,  123;  in 
California,  207. 

Enabling  acts  for  admission  of 
states,  112. 

England,  constitutional  forms 
of,  carried  over  to  America,  7, 
10,  13,  26,  35,  38,  64,  66,  77; 
how  fehe  American  system  dif- 
fers from  that  of,  116,  142; 
later  constitutional  develop- 
ments in,  391;  referendum  in, 
401. 

Equality  of  men,  doctrine  of, 
407-408. 

Erie  canal,  improvement  of,  185. 

Eureka,  freeholders'  charter  in 
city  of,  349- 

Executive  power;  how  exer- 
cised, in  American  states,  o, 
78,  79;  in  Pennsylvania,  20,  56, 
57,  58,  64,  106 ;  restraint  on,  by 
the  constitutional  convention, 

87- 
Ex  parte  wall,  321-323 


FEDERAL  Constitution  (United 
States),  35,  62,  63,  64,  69,  71, 
77,  79,  121,  156. 

Feek  v.  Township  Board,  328. 

Fence  laws  in  local  districts,  295- 
300;  373-374- 

Fire,  protection  from  in  cities, 
255- 

Financial  credit;  of  states,  84, 
182-191 ;  of  localities,  84,  241- 
285. 

Florida,  limit  of  legislative  ses- 
sion in,  81 ;  adoption  of  Con- 
stitution of,  in  1839,  113,  120; 
amendment  of  Constitution  of. 
151;  school  tax  in,  274;  local 
option  in,  289,  290,  291,  292, 
293,  372 ;  choice  of  county  sites 
in,  373- 

Folkmote  in  Switzerland,  3,  108. 

France,  revolutionary  Constitu- 
tions in,  i,  37,  76;  influence  of, 
in  constitutional  matters  in 
America,  4  et  seq.;  single 
chamber  system  in,  28,  62,  63, 
67,  71 ;  Franklin  in,  28-39,  62 ; 
policy  of,  toward  America,  42; 
constitutional  conventions  in, 
75 ;  plebiscite  in,  102,  400. 

Franchises  for  private  companies 
in  cities,  250-252,  308. 

Franklin,  Benjamin;  democratic 
views  of,  5;  presid-nt  of  the 
Pennsylvania  convention  of 
1776,  16,  18,  27;  part  taken  by, 
in  framing  the  first  Constitu- 
tion of  Pennsylvania,  27,  28,  30, 
42,  61 ;  his  years  in  France,  28- 
34;  his  friendship  with  the 
French  philosophers,  3^-39 ; 
president  of  Pennsylvania,  38, 
62 ;  his  defense  of  the  Pennsyl- 
vania Constitution,  38-42;  his 
universal  reputation  as  a  phi- 


INDEX 


419 


losopher,  42-44;    his  return  to 
America,  60-6 1. 

Freeholders'  charters  for  cities, 
343-361. 

GEEBRICK  v.  State,  322,  323. 

General  elections,  135,   164-169. 

General  laws  for  cities  and  local 
districts,  219,  235,  287,  353-359.. 
361,  37i. 

Georgia,  first  Constitution  of,  25 ; 
annual  legislative  sessions  in, 
80;  number  of  Constitutions 
in,  95;  reference  of  Constitu- 
tion of,  to  popular  vote.  112; 
constitutional  conventions  in, 
129,  140,  143;  amendment  of 
Constitution  of,  145,  151 ;  con- 
federate pensions  in,  161 ;  re- 
moval of  capital  in,  178;  choice 
of  county  sites  in,  231,  373, 
378;  public  buildings  in  local 
districts  of,  254;  school  tax  in, 
274;  limit  of  debt  in  local  dis- 
tricts of,  280;  local  option  law 
in,  290,  292,  293,  372;  fence 
laws  in,  297,  299,  300,  373. 

GERMANY,  Constitution  of,  77; 
political  system  of,  392. 

Goddin  v.  Crump,  319. 

Godkin,  E.  L.,  views  of,  on  refer- 
endum, 410. 

Grass  Valley,  freeholders'  charter 
for  city  of,  349. 

Greencastle  Township  v.  Black, 
322. 

Groesch  v.  The  State,  322. 

HAMILTON,  Alexander;  his  serv- 
ices to  America,  66. 

Harrington,  influence  of  writings 
of.  10,  12. 

Hedge  Law  in  Kansas,  300,  305, 

Herd  Laws,  295-300. 


Hoadly,  influence  of  writings  of, 
10. 

"  Home  Rule "  for  cities,  222- 
224,  337-36i. 

House  of  Lords  in  England,  pro- 
posed abolishment  of,  18. 

IDAHO,  limit  of  legislative  session 
in,  82 ;  submission  of  Constitu- 
tion in,  113;  amendment  of 
Constitution  of,  151 ;  woman 
suffrage  in,  160;  removal  of 
capital  of,  178,  179;  financial 
referendum  in,  184;  referen- 
dum on  rate  of  taxation  in, 
190;  division  of  counties  in, 
229;  choice  of  county  sites  in, 
231 ;  selection  of  names  of 
towns  and  cities  in,  234;  loans 
for  cemeteries  in,  261 ;  limit  of 
debt  in  local  districts  of,  280. 

Illinois,  length  of  Constitution 
of,  87;  'number  of  Constitu- 
tions of,  95;  suffrage  proposi- 
tion in,  119;  amendment  of 
Constitution  of,  151,  157;  finan- 
cial referendum  in,  183,  184, 
185;  lease  of  canal  in,  188; 
poll  of  people  on  expenditure 
for  new  capitol  in,  188;  bank- 
ing laws  in,  191,  192;  partition 
of  counties  in,  229;  choice  of 
county  sites  in,  231,  373;  town 
meetings  in,  233 ;  reform  of 
civil  service  in,  237,  375;  city 
councils  in,  238 ;  township  sys- 
tem in,  240 ;  public  aid  to  rail- 
ways in,  246 ;  expenditure  for 
hospitals  in  local  districts  of, 
255 ;  road  tax  in,  258,  266 ;  city 
budgets  in,  270;  high  schools 
in,  276,  374;  normal  schools 
in,  277;  library  tax  in.  278; 
limit  on  tax  rate  in,  281 ;  school 


420 


INDEX 


lands  in,  284,  382;  judicial 
opinion  on  law-making  by  pop- 
ular vote  in,  319. 

Illinois  and  Michigan  canal,  sale 
or  lease  of,  188. 

Indiana,  method  of  amending 
Constitution  of,  152,  157; 
choice  of  county  sites  in,  232, 
373,  379;  road  tax  in,  259; 
free  turnpikes  in,  259;  school 
lands  in,  284;  judicial  opin- 
ion on  law-making  by  popular 
vote  in,  321-323. 

Industrial  companies,  public  aid 
for,  248-250. 

Internal  improvements,  242-248. 

Iowa,  suffrage  proposition  in, 
119;  propositions  submitted  to 
people  of,  120;  submission  of 
convention  question  in,  133 ; 
amendment  of  Constitution  of, 
152;  financial  referendum  in, 
183,  184;  banking  laws  in,  191, 
192;  prohibition  law  in,  204, 
212;  choice  of  name  of  cities 
and  towns  in,  234;  county  gov- 
ernment boards  in,  237;  public 
aid  to  railways  in,  248;  fran- 
chises in  cities  of,  251 ;  public 
buildings  in  local  districts  of, 
253-254 ;  waterworks  and  light- 
ing plants  in  cities  of,  257 ;  tax 
for  monuments  in,  264;  high 
schools  m,  276;  library  tax  in, 
278;  fence  laws  in,  297,  299, 
373;  initiative  and  referendum 
in,  307,  309,  368,  384,  388,  399; 
judicial  opinion  on  law-making 
by  popular  vote  in,  321-323. 

Irrigation  districts,  226,  258. 

Italy,  plebiscites  in,  400. 

JAMESON,  Judge ;  his  views  on 
constitutional  conventions,  73, 


76,  77,  87-89,  97,  98,  116,  127;   on 

the  referendum,  409. 
Jellinck;     his    studies    regarding 

America  and  France,   i    2    ?4 

j     *•!     OT" 

Judiciary,  place  of,  in  system  of 
government  in  American 
States,  9,  21,  52,  57,  58,  65; 
convention's  restrictions  on  the, 
87;  referendum  in  reference  to 
the,  in  local  districts,  238. 

KANSAS,  limit  of  Iegi3lative  ses- 
sion in,  82;  suffrage  proposi- 
tion in,  119;  amendment  of 
Constitution  in,  151,  157;  wom- 
an suffrage  in,  160;  amend- 
ment elections  in,  167 ;  site  of 
state  capital  in,  177;  financial 
referendum  in,  184;  banking 
laws  in,  192;  choice  of  county 
sites  in,  231,  373,  377;  sites  for 
public  buildings  in  cities  of, 
233;  selection  of  name  for 
cities  and  towns  of,  234 ;  public 
aid  to  railways  in,  248 ;  public 
aid  to  industrial  companies  in, 
249;  free  bridges  in,  259; 
cemeteries  in,  261 ;  encourage- 
ment to  coal  mining  in,  261 ; 
fire  tax  in,  262;  hedge  bounty 
in,  263  ;  appropriations  for  poor 
in  counties  of,  263;  high 
schools  in,  276;  library  tax  in, 
278 ;  school  lands  in,  285 ;  poor 
farms  in,  285;  fence  laws  in, 
297,  299,  300;  hedge  law  in, 
305. 

Kansas  City,  charter  of,  345-347, 
361. 

Kent,  Chancellor,  views  of,  on 
submission  ot  Constitutions, 
130. 

Kentucky,  limit  of  legislative 
session  in,  81,  82;  spe- 


INDEX 


421 


eial  legislation  in,  85;  length 
of  Constitution  of,  88;  con- 
stitutional convention  in,  96; 
no  submission  of  Constitu- 
tion in,  113,  116;  125,  126; 
submission  of  convention  ques- 
tion in,  130,  133,  134,  140; 
amendment  of  Constitution  of, 
151,  157;  financial  referendum 
in,  184;  partition  of  counties 
in,  229;  choice  of  county  sites 
in,  232,  373;  county  govern- 
ment boards  in,  238;  public 
grants  to  road  companies  in, 
245;  public  buildings  in  local 
districts  of,  253;  road  tax  in 
259 ;  free  turnpikes  in,  259 ; 
free  bridges  in,  259;  school  tax 
in,  274,  277;  high  schools  in, 
276;  limit  of  debt  in  local 
districts  of,  280;  local  option  in, 
290,  291,  292,  380;  fence  laws 
in,  297,  299,  300,  373,  382;  ju- 
dicial opinion  on  law-making 
by  popular  vote  in,  331. 

LABOR  question;    in  New  York, 
206-207 ;      in     Massachusetts, 

303- 

Landsgemeinde,  in  Switzerland. 
3,  108. 

La  Rochefoucauld,  the  Duke  de; 
his  advocacy  of  the  single 
chamber  system,  28,  36,  37,  38; 
his  friendship  with  Franklin, 
206-207 ;  in  Massachusetts, 
31-  32,  62. 

Lee,  Richard  Henry,  views  on 
government  of,  8. 

Legislatures,  Rousseau's  theories 
regarding,  3  ;  Adams'  theories 
regarding,  8,  9,  67,  68;  decline 
of  power  of,  in  the  American 
states,  71  et  seq.;  rights  of,  in 


framing  constitutions,  73-75  ;  in 
the  election  of  magistrates,  78, 
79;  biennial  sessions  of  the, 
79-8i ;  limit  of  length  of  ses- 
sions of,  81-83 ;  limit  of  field  of 
activity  of,  84-86,  218,  219,  222; 
attacks  of,  on  conventions,  91, 
92,  93;  degeneracy  of,  97,  156, 
158,  186,  219,286,363,  364,  391, 
395,  410;  constitutional  amend- 
ment by  the,  141-172;  delega- 
tion of  authority  by,  173,  209, 
397;  power  of  the,  over  local 
governments,  223,  224,  328- 
333- 

Leibnitz,  Franklin  compared 
with,  43. 

Le  Veillard;  his  friendship  with 
Franklin,  38,  39. 

Libraries,  taxation  for,  277,  278. 

Lighting,  franchises  for,  251,  252; 
plants  for,  as  municipal  en- 
terprises, 256,  257. 

Liquor  legislation ;  in  states,  159, 
160,  161,  200-205;  in  local  dis- 
tricts, 286-294,  318-323,  37i, 
372 ;  in  Canada,  402,  403 ;  in 
England,  401. 

Live  stock,  restraint  of,  in  local 
districts,  295-300. 

Locke,  John  Adams'  studies  of, 
12. 

Locke's  Appeal,  322. 

Los  Angeles,  freeholders'  charter 
in,  348,  353,  354- 

Lottery  in  Louisiana,  160;  in  Ne- 
vada, 160-161;  in  New  Jersey, 
161. 

Louisiana,  length  of  Constitution 
of,  88;  efforts  of  legislature 
of,  to  bind  convention  of,  91, 
92 ;  number  of  constitutions 
in,  95 ;  constitutional  conven- 
tion in,  96;  no  submission  of 


422 


INDEX 


Constitution  in,  113-116,  138; 
disfranchisement  of  negroes  in. 
123,  124,  140;  amendment  of 
Constitution  in,  151 ;  lottery 
amendment  in,  160;  confeder- 
ate pensions  in,  161 ;  leasing 
out  of  convicts  in,  161 ;  amend- 
ment elections  in,  170;  parti- 
tion of  counties  in,  229 ;  choice 
of  county  sites  in,  232,  public 
aid  to  railways  in,  248;  limit 
of  debt  in  local  districts  of, 
280 ;  school  lands  in,  284 ;  right 
of  way  for  street  car  lines  in, 
304 ;  judicial  opinion  on  law- 
making  by  popular  vote  in, 
330 ;  popular  vote  on  city  char- 
ters in,  342,  343. 

Lum  v.  Vicksburg,  327. 

Lynching,  methods  of  restricting, 
378. 

MADISON,  James,  views  of  re- 
garding single  chamber  gov- 
ernment, 69. 

Magistrates,  election  of,  by  the 
state  legislatures,  78,  79. 

Maine,  constitutional  commission 
in,  94;  first  Constitution  of, 
referred  to  popular  vote,  112; 
amendment  of  Constitution  of, 
149,  151,  154;  legislative  repre- 
sentation in,  195 ;  separation 
of,  from  Massachusetts,  96, 
228;  prohibition  law  in,  201- 
202,  213,  214. 

Maize  v.  The  State,  321,  322,  323. 

Majority,  meaning  of,  153;  pow- 
er of,  155. 

Maryland,  salutary  example  of 
first  Constitution  of,  64,  107; 
biennial  sessions  in,  80;  limit 
of  legislative  session  in,  81 ; 
submission  of  convention  ques- 


tion in,  133;  amendment  of 
Constitution  of,  142,  143,  144, 
151;  civil  service  in,  162;  par- 
tition of  counties  in,  229;  pub- 
lic aid  for  railroads  in,  247, 
312;  expenditure  for  city  fire 
department  in,  256;  salary  of 
mayor  in,  269;  free  schools  in, 
271 ;  fence  laws  in,  297;  oyster 
law  in,  301 ;  judicial  opinion 
on  law-making  by  popular  vote 
in,3i9,330,332;  incorporation 
of  towns  and  cities  in,  340. 

Massachusetts,  reference  of  first 
Constitution  of,  to  popular 
vote,  18,  103,  104,  105,  no,  iii; 
114,  118,  406;  sentiment  in 
favor  of  single  chamber  in,  69- 
71 ;  early  Constitutions  of,  74, 
75;  features  of  first  Constitu- 
tion of,  78,  143 ;  annual  legisla- 
tive sessions  in,  80;  proxy  sys- 
tem in,  109 ;  submission  of  con- 
vention question  in,  128,  129; 
amendment  of  Constitution  of, 
by  the  legislature,  147,  152; 
amendment  elections  in,  167; 
Maine's  separation  from,  196; 
municipal  suffrage  for  women 
in,  208;  contingency  theory  in, 
21 1 ;  city  government  in,  238; 
local  option  in,  289-293;  eight 
hour  day  in,  303;  rights  of 
elective  street  railways  in,  304; 
form  of  submission  of  local 
laws  in,  313;  judicial  opinion 
on  referendum  in,  318,  325, 
397;  town-meeting  system  in, 
331;  incorporation  of  towns 
and  cities  in,  340. 

Matlack,  Timothy;  a  framer  of 
the  first  Constitution  of  Penn- 
sylvania, 27,  30. 

McKean,  Thomas ;  his  opposition 


INDEX 


423 


to  the  first  Constitution  of 
Pennsylvania,  45. 

Michigan  constitutional  commis- 
sion in,  94 ;  reference  of  Con- 
stitution of,  to  popular  vote, 
112;  submission  of  convention 
question  in,  133 ;  amendment 
of  Constitution  of,  151,  154; 
removal  of  capital  of,  179;  fi- 
nancial referendum  in,  183; 
banking  laws  in,  191,  192;  pro- 
hibition law  in,  203,  204,  216; 
choice  of  county  sites  in,  232; 
laws  regarding  roads  in,  239, 
245,  259,  266;  city  budgets  in, 
270;  library  tax  in,  278;  local 
option  law  in,  290,  292;  judi- 
cial opinion  on  referendum  in, 
328. 

Milton,  John,  Adams'  studies  of, 
12. 

Minnesota,  amendment  of  Con- 
stitution of,  151;  amendment 
elections  in,  161,  162,  167,  169, 
171 ;  removal  of  state  capital 
of,  178;  financial  referendum 
in,  187,  190,  191 ;  Home  Rule 
for  cities  of,  222,  235,  358,  361 ; 
partition  of  counties  in,  229; 
choice  of  county  sites  in,  232; 
selection  of  name  of  cities  and 
towns  in,  234;  road  laws  in, 
239,  259 ;  public  aid  to  canal 
companies  in,  245 ;  loans  for 
public  buildings  in  local  dis- 
tricts of,  254 :  loans  for  ceme- 
teries in,  261 ;  fence  laws  in, 
262,  297;  library  tax  in,  278; 
local  option  law  in,  290,  291, 

372. 

Minority  representation;  in  cor- 
porations in  New  Hampshire, 
206,  215;  in  cities  in  Illinois, 
238. 


Mirabeau ;  his  advocacy  of  the 
single  chamber  system  in 
France,  28,  36. 

Mississippi,  quadrennial  legisla- 
tive sessions  in,  80;  length  of 
Constitution  of,  88;  number 
of  constitutions  in,  95 ;  new 
Constitution  in,  96 ;  no  submis- 
sion of  Constitution  in,  113- 
116,  120,  125,  126,  138,  140;  suf- 
frage test  in,  120,  121 ;  amend- 
ment of  Constitution  in,  151 ; 
removal  of  capital  of,  178;  di- 
vision of  counties  in,  229;  di- 
vision of  judicial  districts  in, 
230;  choice  of  county  sites  in, 
232;  local  option  law  in,  290, 
292,  293,  372;  fence  laws  in, 
297,  299,  300;  judicial  opinion 
on  referendum  in,  327 ;  uni- 
versity of,  383. 

Missouri,  length  of  Constitution 
of,  87 ;  number  of  constitu- 
tions of,  95 ;  submission  of 
convention  question  in,  132; 
amendment  of  Constitution  of, 
151,  161 ;  financial  referendum 
in,  184,  185;  banking  laws  in, 
192;  classification  of  cities  in, 
220;  Home  Rule  for  cities  of, 
222,  235,  343-347,  36o,  361 ;  di- 
vision of  counties  in,  229; 
choice  of  county  sites  in,  232 ; 
boards  of  public  works  in  cities 
of,  239;  township  system  in, 
240 ;  city  franchises  in,  252 ; 
pensions  to  policemen  in,  269; 
school  tax  in,  274;  library  tax 
in,  277;  limit  of  debt  in  local 
districts  of,  280;  sale  of  parks 
in,  285;  local  option  law  in, 
290-292,  372 ;  fence  laws  in, 
297,  299,  374;  Sunday  law  in, 


424 


INDEX 


301 ;    conditional  legislation  in, 

314. 

Montana,  limit  of  legislative 
session  in,  81 ;  length  of  Con- 
stitution of,  88 ;  amendment  of 
Constitution  of,  151,  157;  re- 
moval of  capital  in,  178;  finan- 
cial referendum  in,  184;  rate 
of  state  taxation  in,  190 ;  choice 
of  county  sites  in,  232 ;  school 
tax  in,  276;  limit  of  debt  in 
local  districts  of,  281 ;  local  op- 
tion law  in,  290-292,  372. 

Montesquieu,  influence  of,  in 
America,  7,  12,  64,  142. 

Monuments,  tax  to  erect,  264, 
265. 

Muhlenberg,  F.  A. ;  President  of 
council  of  censors  in  Pennsyl- 
vania and  opponent  of  single 
chamber  system,  56,  59,  64. 

Municipal  government,  failures 
in,  84,  363,  364;  legislature's 
powers  regarding,  328-333,  338, 
399;  problems  of,  in  America, 
335-367. 

NAPA,  freeholders'  charter  of  city 

of,  349- 

Napoleon,  plebiscites  of,  400. 

Nebraska,  limit  of  legislative  ses- 
sion in,  82 ;  parliamentary  pro- 
cedure in,  85;  submission  of 
convention  question  in,  132; 
amendment  of  Constitution  of, 
151 ;  liquor  license  in,  161 ; 
ameoidmjent  elections  in,  162, 
170;  removal  of  capital  in,  178; 
division  of  counties  in,  229; 
county  government  boards 
in,  237 ;  township  system  in, 
240;  public  aid  for  railroads 
in,  247;  city  franchises  in,  251, 
252;  public  aid  for  hospitals 


in,  255  ;  encouragement  of  coal 
mining  in,  261 ;  aid  for  exposi- 
tion in,  262;  bounties  for 
wolves  in,  262,  375 ;  bonds  to 
relieve  poor  in  counties  of,  263 ; 
city  budgets  in,  270 ;  limit  on 
tax  rate  in,  281 ;  initiative  and 
referendum  in,  306-310,  368, 
384,  386,  389,  405. 

Nedham,  influence  of  in  America, 
10. 

Negro  suffrage,  119,  120-124,  194. 

Nevada,  method  of  amending 
Constitution  of,  152 ;  lottery  in, 
160;  Chinese  immigration  in, 
207;  high  schools  in,  276,  374. 

Neville,  influence  of,  in  America, 
10. 

New  England,  democratic  system 
of  government  in,  i,  3,  106- 
110,  329. 

New  Hampshire,  first  Constitu- 
tions of,  18,  74,  78,  105-107, 
no,  in,  118,  406;  insurrection 
in,  70;  length  of  Constitutions 
of,  88;  amendment  of  Consti- 
tution of,  129,  133,  143,  145, 
150;  amendment  elections  in, 
166;  minority  representation 
in  corporations  in,  206,  215; 
constitutionality  of  the  referen- 
dum in,  215. 

New  Jersey,  annual  legislative 
sessions  in,  80;  constitutional 
commission  in,  94;  method  of 
amending  Constitution  of,  152; 
woman  suffrage  in,  160 ; 
amendment  elections  in,  165, 
166 ;  financial  referendum  in, 
183,  184;  special  laws  for  cities 
in,  236,  237;  city  fire  depart- 
ment systems  in,  256;  tax  for 
board  walks  in  seaside  cities  of  t 
260 ;  salaries  of  local  officers  in, 


INDEX 


425 


269;  library  tax  in,  278;  high 
license  in,  293,  294,  372;  fence 
laws  in,  297 ;  local  option  in, 
315;  what  may  be  a  contin- 
gency in,  326. 
Newton,  Franklin  compared  to, 

43- 

New  York,  features  of  first  Con- 
stitution of,  78;  annual  legisla- 
tive sessions  in,  80;  constitu- 
tional commission  in,  94;  last 
constitutional  convention  in,  96 
98,  119;  Constitution  of  1821, 
in,  112,  118,  130,  131,  139;  suf- 
frage proposition  in,  119;  sub- 
mission of  convention  question 
in,  133 ;  amendment  by  legisla- 
tive mode  in,  148,  152;  finan- 
cial referendum  in,  183-185; 
free  school  law  in,  205,  206, 
210,  216,  273,  311 ;  convict  labor 
in,  206,  207 ;  tax  for  monu- 
ments in,  265;  pensions  for 
school  teachers  in,  269,  374;  li- 
brary tax  in,  278;  local  option 
in,  290-292;  freedom  of  cities 
in,  361-363,  366,  367. 

New  York  City,  Sunday  laws  in, 
302. 

New  Zealand,  referendum  in, 
404. 

Non-Intercourse  Acts,  326. 

North  Carolina,  first  Constitu- 
tion of,  12;  submission  of  later 
Constitution  of,  to  popular 
vote,  112;  amendment  of  Con- 
stitution of,  151 ;  financial  ref- 
erendum in,  186,  187;  prohibi- 
tion law  in,  204-205  ;  public  aid 
for  railroads  in,  247-248;  pub- 
lic aid  to  industrial  companies 
in,  249;'  free  bridges  in,  259; 
convicts  on  roads  in,  266;  nor- 
mal school  in,  277;  limit  of 


debt  in  local  districts  of,  279; 
local  option  law  in,  290-293, 
372;  liquor  dispensaries  in. 
294;  fence  laws  in,  297,  299, 
300,  374. 

North  Dakota,  limit  of  legisla- 
tive session  in,  81 ;  submission 
of  debatable  propositions  in, 
119;  method  of  amending  Con- 
stitution of,  152;  financial  ref- 
erendum in,  187;  woman  suf- 
frage in,  194 ;  division  of  coun- 
ties in,  229 ;  county  govern- 
ment boards  in,  237 ;  township 
system  in,  240;  public  aid  for 
railroads  in,  247;  city  budgets 
in,  270;  what  may  be  a  con- 
tingency in,  325 ;  fence  law  in, 
374- 

OAKLAND,  freeholders'  charter  in 
city  of,  349- 

Ohio,  amendment  of  Constitu- 
tion of,  152,  155;  banking 
laws  in,  191,  192;  classification 
of  cities  in,  220;  special  legis- 
lation for  cities  in,  221 ;  divis- 
ion of  counties  in,  229;  choice 
of  county  sites  in,  232 ;  boards 
of  education  in,  237;  public 
buildings  in  local  districts  of, 
254,  285 ;  relief  of  poor  in  local 
districts  of.,  255 ;  free  turn- 
pikes in,  259;  cemeteries  in, 
261 ;  public  money  for  county 
fair  grounds  in,  262;  tax  for 
monuments  in,  265  ;  hearse  tax 
in,  267;  reimbursement  of  local 
officials  in,  267,  268;  library 
tax  in,  278;  school  lands  in, 
284;  sale  of  railway  in,  285; 
local  option  law  in,  290,  292; 
voting  machines  in,  305;  chil- 
dren's homes  in,  374. 


426 


INDEX 


Ontario,  Sunday  law  in,  302 ; 
liquor  legislation  in,  402. 

Oregon,  limit  of  legislative  ses- 
sion in,  82 ;  suffrage  proposi- 
tion in,  119;  method  of  amend- 
ing Constitution  of,  152;  state 
capital  of,  177,  178;  fence  laws 
in,  297,  299,  300,  374;  in- 
corporation acts  in,  341. 

Oysters,  law  for  protection  of, 
in  Maryland,  301. 

PAINE,  Thomas ;  his  activity  in 
America  and  France,  5,  6,  7, 
8,  13,  27,  48. 

Parker  v.  Commonwealth,  320, 
322,  323. 

Parks,  tax  for,  in  cities,  260. 

Parliamentary  government,  391. 

Penn,  William,  admiration  of 
views  of,  in  France,  33. 

Pennsylvania,  democratic  feeling 
in,  during  the  Revolution,  7 
et  seq.;  adoption  of  first  Con- 
stitution of,  11-13,  17-22,  27- 
34,  et  seq.;  county  committees 
in,  14;  provincial  conference 
in,  14,  15 ;  first  constitutional 
convention  in,  14-18;  Frank- 
lin's defence  of  first  Constitu- 
tion of,  38-41 ;  opposition  to 
and  downfall  of  Constitution 
of,  45  et  seq.;  second  Constitu- 
tion of,  64,  65;  method  of 
amending  first  Constitution  of, 
74,  128,  129 ;  length  of  Consti- 
tutions of,  87 ;  number  of  Con- 
stitutions of,  95  ;  no  submission 
of  first  Constitution  of,  101, 
102,  107,  128;  ballot  system  in, 
no,  in;  method  of  amending 
present  Constitution  of,  152; 
amendment  elections  in,  166, 
170;  removal  of  state  capital 


in,  178;  classification  of  cities 
in,  219,  220;  special  legislation 
in,  221 ;  poor  house  sites  in, 
233 ;  road  law  in,  244 ;  dog  tax 
in,  264;  free  schools  in,  271, 
272;  limit  of  debt  in  local 
districts  of,  280;  local  option 
law  in,  288;  constitutionality 
of  referendum  in,  320. 

Pensions  to  civil  officials,  269. 

People,  as  their  own  law  makers, 
117,  170-172,  281,  282,  232,  233, 
376-380;  indifference  and  apa- 
thy of,  166-172,  403,  411. 

People  ex  rel.  v.  Reynolds,  319. 

Petition,  right  of,  101 ;  its  like- 
ness to  the  initiative,  368.  369. 

Philadelphia,  the  first  capital  of 
the  united  colonies,  16;  a  cen- 
tre of  opposition  to  the  first 
Constitution  of  Pennsylvania, 
52;  city  government  of,  220; 
choice  of  site  for  city  hall  in, 
233;  election  on  loan  bill  in, 
282. 

Philosophical  Society,  in  Phila- 
delphia, 43. 

"  Physiocratie ",  Franklin's  in- 
terest in  the,  28. 

Plato,   Adams'     studies   of,    12. 

Plymouth  colony,  proxy  system 
in,  109,  no. 

Police  Jury  v.  McDonough,  330. 

Political  Philosophy,  what  is,  72. 

Political  Science,  what  is,  72. 

Poor,  relief  of,  254,  255,  263, 
266. 

Price,  Dr. ;  his  advocacy  of  the 
single  chamber  system,  34,  37. 

Primaries,  law  to  reform  the,  306. 

Prohibition  of  liquor  trade ;  in 
states,  118,  119,  159,  165,  166, 
170,  200-205.  212-214;  in  local 
districts,  286-293. 


INDEX 


427 


Proprietary  government ;  in  mid-  | 
die  states,  1 1 ;  in  Pennsylvania, 

14,  40. 

Proxy  system  in  New  England, 
109. 

Public  buildings,  loans  for;  in 
states,  188,  189;  in  local  dis- 
tricts, 253,  254. 

Public  lands,  sale  or  lease  of, 
283-285- 

Public  opinion,  influence  of,  117, 
198. 

QUESNAY,  Dr.,  Franklin's  friend- 
ship with,  29. 

RAILWAYS,  public  aid  for,  245- 
248. 

"  Republican  "  government,  124, 
125,  174,  198,  319- 

Representative  government,  na- 
ture of,  3,  9,  70,  97,  198,  212, 
214,  215-217,  311,  312,  319,  390, 
391;  decline  of,  96,  97,  241,  242, 
250,  251,  335-337,  392-396,  408- 
411. 

Repudiation  of  public  debt,  182, 
241. 

Rhode  Island,  annual  legislative 
sessions  in,  80;  Constitutional 
commission  in,  93;  represen- 
tative system  in,  no;  submis- 
sion of  first  Constitution  of,  to 
popular  vote,  112;  method  of 
amending  Constitution  of,  152, 
153;  financial  referendum  in, 
183,  184;  prohibitory  liquor 
law  in,  204,  213 ;  industrial 
companies  in,  250 ;  fence  laws 
in,  297,  299;  incorporation  acts 

in,  341- 

Rice  v.  Foster,  319,  322,  323. 

Rittenhouse,  David ;  a  member 
of  the  Pennsylvania  Constitu- 
tion of  1776,  1 6. 


Roads,  laws  regarding,  in  West 
Virginia,  239;  public  grants  to 
companies  engaged  in  building, 
244;  public  construction  of, 
258,  259;  "working  out"  the 
tax  for,  266. 

Ross,  George,  in  Pennsylvania 
convention  of  1776,  16,  19,  45. 

Rotation  of  offices,  n,  22,  57. 

Rousseau ;  his  influence  on  polit- 
ical thought  in  America,  T,  2, 
3,  4,  24,  32,  34,  66,  390,  407,  408. 

Rush,  Benjamin;  his  opposition 
to  the  first  Constitution  of 
Pennsylvania,  45. 

Russia,  political  system  of,  391. 

SACRAMENTO,  freeholders'  char- 
ter in,  349. 

Salaries  of  civil  officers,  adjust- 
ment of,  86,  268,  269. 

San  Diego,  freeholders'  charter 
i*n,  349,  354- 

San  Francisco,  freeholders'  char- 
ter in,  347-352;  initiative  and 
referendum  in,  308,  310,  384 f 
386,  389,  405. 

San  Jose,  freeholders'  charter  in, 
349- 

Santa  Barbara,  freeholders'  char- 
ter in,  349. 

Schools,  legislation  for,  205,  206, 
210,  226,  243,  270-277,  284. 

Seattle,  freeholders'  charter  in, 
356. 

Secession  conventions  in  the 
South,  76,  95,  ii2,  120,  144. 

Senators,  election  of  by  popu- 
lar vote,  207. 

Sewerage  system,  loans  in  be- 
half of,  257. 

Shay's  Rebellion,  in  Massachu- 
setts, 70. 

Sheep,  laws  to  protect,  264. 


428 


INDEX 


Sidney,  influence  of,  in  America, 
10. 

Single  chamber  government,  7, 
10,  n,  17,  18-21,  23,  24,  26, 
30-41,  52-58,  64,  65,  69-72,  96. 

Socialists,  interest  of,  in  the  ref- 
erendum, 401. 

South  Carolina,  first  Constitu- 
tions of,  74,  78;  annual  legis- 
lative sessions  in,  80;  last  con- 
vention in,  96;  no  submission 
of  Constitution  of,  113,  114* 
116,  140;  educational  test  in, 
121 ;  amendment  of  Constitu- 
tion of,  145,  150;  financial  ref- 
erendum in,  185;  division  of 
counties  of,  229;  incorpora- 
tion of  towns  and  cities  In, 
230;  choice  of  county  sites  in, 
232;  county  courts  in,  238; 
public  aid  to  railways  in,  248; 
taxation  of  industrial  com- 
panies in,  249;  waterworks 
and  lighting  plants  in,  257; 
normal  school  in,  277 ;  liquor 
dispensaries  in,  294;  lynching 
evil  in,  378. 

South  Dakota,  limit  of  legisla- 
tive session  in,  82;  length  of 
Constitution  of,  88;  submis- 
sion of  debatable  proposi- 
tions in,  118,  119;  amend- 
ment of  Constitution  of,  151 ; 
woman  suffrage  in,  160,  195; 
liquor  legislation  in,  161,  290, 
294 ;  amendment  elections  in, 
171 ;  initiative  and  referen- 
dum in,  174,  175,  307,  309,  310, 
368,  384,  385,  388,  389,  405, 
412;  state  capital  site  in,  177; 
choice  of  county  sites  in,  232 ; 
city  budgets  in,  270;  school 
tax  in,  276. 

Sovereignty,  where  it  resides,  72. 


Special  elections,  135,  164-169. 
Special    legislation,    84,    85,    218- 

221,  236,  237,  363-366,  370. 
Spokane,      freeholders'      charter 

for,  356. 
St.  Louis,   Sunday  laws  in,  301 ; 

charter  of,  344-347,  360. 
State   governments,    the   people's 

lack  of  understanding  of  their, 

395- 
State  ownership  of  utilities,  242, 

243- 

State  Rights,  395. 
State  ex  rel.  Witter  v.  Forkner, 

322. 

State  v.  Swisher,  322,  323. 
State  v.  Weir,  322,  323. 
Statutes,    poll    of   the   people   on 

general  state,  173,  et  seq. 
Stock  Laws,  295. 
Stockton,     freeholders'     charter 

in,  349. 
Suffrage,    regulation    of   the,   99, 

100,  118-123,  159,  160,  193-195, 

207,  208. 
Sunday  Laws ;  in  St.  Louis  301 ; 

in    New    York    302;     in    To- 
ronto, 302,  303. 
Switzerland,   primary   assemblies 

in  cantons  of,  3,  108;    force  of 

example   of,    in    America,    100, 

169,  400,  404,  408,  409. 

TACOMA,  freeholders'  charter  in, 
356,  357- 

Talbot  v.  Dent,  319. 

Taxation,  rate  of,  in  Colorado, 
188,  189;  in  Montana,  190;  in 
Idaho,  190;  in  Utah,  190;  in 
local  districts,  282,  283. 

Tennessee,  limit  of  legislative 
session  in,  83 ;  submission  of 
Constitution  of,  to  popular 
vote,  112;  convention  question 


INDEX 


429 


in,  13(7,  132 ;  method  of  amend- 
ing Constitution  of,  153,  157; 
special  laws  in,  221;  division 
of  counties  in,  229;  choice  of 
county  sites  in,  232;  public  aid 
for  railroads  in,  247,  248; 
school  lands  in,  284;  public 
incorporation  acts  in,  340. 

Texas,  limit  of  legislative  ses- 
sion in,  83;  number  of  Con- 
stitutions in,  95;  amendment 
of  Constitution  of,  151 ;  con- 
federate pensions  in,  161 ; 
amendment  elections  in,  166, 
168,  170-  site  of  state  capital 
in,  176;  choice  of  site  for  uni- 
versity in,  180;  division  of 
counties  in,  229;  choice  of 
county  seats  in, 232;  seawalls 
in,  258;  school  taxes  in,  274; 
local  option  in,  289-293,  372; 
fence  laws  in,  297,  299,  300. 

Tories,  influence  of,  on  consti- 
tutional development  in  Amer- 
ica, 17.  26,  52,  53,  101. 

Toronto,    Sunday    laws    in,    302, 

303- 
Town,    the,    as    a   unit    of    local 

government,  224,  225. 
Town  meeting  in  New  England, 

3,  108-110. 

Township,  as  a  local  unit,  225, 240. 
Tramway   companies,    franchises 

for,  251,  252. 
Trial  by  jury,  162. 
Turgot ;   his  advocacy  of  the  sin- 
gle chamber  system,  29,  34,  37, 

42,  69,  71. 
Turnpikes,    public    aid    to,    244, 

245,  259. 

UNIVERSITIES,  choice  of  sites  for, 

179-181. 
Utah,    submission  of  convention 


question  in,  131 ;  amendment 
of  Constitution  of,  151 ;  rate 
of  taxation  in,  190;  division 
of  counties  in,  229;  choice  of 
county  sites  in,  232,  library 
tax  in.  278,  374;  limit  of  debt 
in  local  districts  of,  280. 

VALLEJO,  freeholders'  charter  of 
city  of,  349. 

Vermont,  early  Constitutions  of, 
23,  24 ;  number  of  Constitu- 
tions in,  95;  ballot  system  in, 
in;  submission  of  Constitu- 
tion of,  to  popular  vote,  112; 
council  of  censors-  in,  129; 
submission  of  convention 
question  in,  133;  method  of 
amending  Constitution  of,  152, 
I57j  prohibition  law  in,  202, 
203,  214,  216,  217;  constitu- 
tionality of  referendum  in, 
321 ;  public  incorporation  acts 
in,  34i. 

Veto  power  of  governor,  175, 
352,  353,  363- 

Victor  Emmanuel,  plebiscites  of, 
400. 

Virginia,  Bill  of  Rights  of,  2; 
first  Constitution  of,  9,  10,  n, 
13,  74,  107;  biennial  sessions 
in,  80;  limit  of  legislative  ses- 
sion in,  82;  length  of  Consti- 
tution of,  87;  method  of 
amending  Constitution  of,  152; 
legislative  representation  in, 
195 ;  retrocession  of  land  to, 
by  Congress,  197,  327 ;  aid  to 
canals  in,  243,  244;  internal 
improvements  in,  245 ;  local 
option  law  in,  290-292,  372; 
fence  laws  in,  297;  constitu- 
tionality of  referendum  in, 
319,  326. 


430 


INDEX 


Voltaire,  meeting  of,  with  Frank- 
lin, 33- 
Voting  machines,  305. 

WALES  v.  Belcher,  318,  325. 

Washington,  length  of  legisla- 
tive session  in,  82;  length  of 
Constitution  of,  88;  debatable 
propositions  submitted  in,  119; 
amendment  of  Constitution  of, 
151;  woman  suffrage  in,  160; 
state  capital  site  in,  178;  fi- 
nancial referendum  in,  184; 
Home  Rule  for  cities  in,  222, 
235,  356,  357,  36o,  361 ;  choice 
of  county  sites  in,  232;  town- 
ship system  in,  240;  encourage- 
ment of  coal  mining  in,  261 ; 
limit  of  debt  in  local  districts 
of,  281. 

Waterworks,  franchises  of  com- 
panies to  operate,  251,  252;  as 
municipal  enterprises,  256,  257. 

Webster,  Daniel,  views  of,  on 
Constitutions,  94,  147. 

Weir  v.  Cram,  322. 

West  Virginia,  limit  of  legisla- 
tive session  in,  82 ;  submission 
of  convention  question  in,  132; 
amendment  of  Constitution  of, 
151 ;  legislative  representation 
in,  196;  annexation  of  terri- 
tory by,  197 ;  division  of  coun- 
ties in,  229;  county  courts  in, 
238;  alternate  road  laws  in, 
239,  316,  375;  public  aid  to 
railways  in,  248;  dog  taxes 
in,  264,  375 ;  school  taxes  in, 
2/4,  275;  high  schools  in, 
276 ;  limit  of  debt  in  local 
districts  of,  280 ;  tax  rate  in,  ' 
281 ;  fence  laws  in,  297,  299,  ! 


300;  public  incorporation  acts 
in,  342. 

Whig  party,  division  of,  in 
Pennsylvania,  53. 

Whig  Society  in  Pennsylvania, 
27,  48-50. 

Wilson,  James;  his  opposition 
to  the  first  Constitution  of 
Pennsylvania,  45,  52. 

Wisconsin,  submission  of  con- 
vention question  in,  132; 
method  of  amending  Constitu- 
tion of,  152;  banking  laws  in, 
191,  192;  negro  suffrage  in, 
193;  choice  of  county  sites  in, 
232 ;  public  aid  to  railways  in, 
248;  city  franchises  in,  252, 
375;  tax  for  soldiers'  memo- 
rials in,  265;  road  tax  in,  266; 
high  schools  in,  276;  local  op- 
tion in,  290,  291,  293,  372;  high 
license  in,  293,  372;  reform  of 
primaries  in,  306. 

Woman  suffrage,  100,  118,  159, 
160,  194,  195,  207,  208,  397, 
398. 

Wyoming,  limit  of  legislative 
session  in,  82;  amendment  of 
Constitution  of,  151 ;  site  of 
state  capital  in,  178,  179;  sites 
for  buildings  of  public  institu- 
tions in,  181,  182;  financial 
referendum  in,  184,  187;  di- 
vision of  counties  in,  229 ;  or- 
ganization of  cities  and  towns 
in,  230;  township  system  in, 
240;  limit  of  debt  in  local  dis- 
tricts of,  280. 

YOUNG,  DR.  THOMAS  ;  one  of  the 
framers  of  the  Pennsylvania 
Constitution  of  1776,  27,  48. 


